KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

D. FINDINGS ON THE MERITS

97. The City contends, in the alternative, that even if Kirola had satisfied her burden of demonstrating Article III standing, she would not prevail on the merits. The Court agrees, and finds that Kirola has failed to establish that she is entitled to relief on any of the claims alleged in the FAC. ²³

98. Plaintiff bears the burden of proving, by a preponderance of the evidence, that the City has violated the ADA. See In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) ("The standard of proof generally applied in federal civil cases is preponderance of evidence.").

99. The City's programs and services at issue consist of its public-right-of-way system along with its library, aquatic and RecPark programs. See, e.g., Cohen, 754 F.3d at 695. The Court therefore considers whether Kirola has shown that each of these services or programs is inaccessible in its entirety. In addition, the Court considers her challenges to certain of the City's policies and procedures, where pertinent.

^23. Kirola claims that she was not able to address the merit-based arguments in the City's Motion for Judgment given the applicable page limitations. Dkt. 672, 2:1-2. The Court, however, did not impose page limitations beyond those proscribed by Civil Local Rule 7-2(b) and, in fact, specifically invited the parties to file a request for enlarged page limitations via either a joint stipulation or an individual motion. Dkt. 663, 8:5-9. It is also noteworthy that both parties have submitted substantial post-trial briefing addressing the merits of this case, which the Court has considered in drafting this Order. E.g., Dkt. 614, 616, 617, 618, 632, 634, 635, 636, 646, 662, 666, 672, 675, 681, 683. Therefore, the Court finds no merit to Kirola's contention that she lacked an adequate opportunity to address the issues in this case.

1. Program Access

100. "Under Title II of the ADA, the standard for compliance is 'program access,' that is, when viewed in its entirety, the city's [programs, services and activities] must be 'readily accessible to and useable by individuals with disabilities.'" Carter v. City of Los Angeles, 224 Cal. App. 4th 808, 821 (2014) (citing 28 C.F.R. § 35.159(a), 45 C.F.R. § 84.22(a), and Cal. Gov. Code § 11135(b)). ADA regulations authorize a public entity to enlist a number of alternative methods to satisfy its program access obligations:

A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.

Id. § 35.150(b)(1) (emphasis supplied). Program access does not require that each particular facility through which a program is offered be fully accessible. See Daubert, 760 F.3d at 987. Rather, the Court must construe the particular program or service "in its entirety" to determine whether it is accessible. Id.

a) Public Right-of-Way

101. Based on the record presented at trial, the Court finds that Plaintiff has failed to establish a lack of program access with regard to the City's public right-of-way, i.e., its system of sidewalks, curb ramps and crosswalks.

102. As an initial matter, Kirola offered no evidence or testimony regarding any accessibility issues with the City's crosswalks. She did, however, identify three sidewalks which she claims were problematic due to cracks or bumps in the concrete, one instance where her wheelchair became stuck in a tree well (the area around the base of the tree), and one corner lacking curb ramps. As discussed above, however, the Court finds that Kirola's minimal testimony regarding accessibility issues with the City's right-of-way in its entirety, coupled with her vague testimony, is insufficient to demonstrate that she was denied meaningful access to the City's right-of-way or that the barriers she encountered violated either federal or state accessibility laws.

103. The testimony of class members and Plaintiff's experts fares no better. Like Kirola, various class members and mothers of class members testified to having encountered cracked pavement, potholes, uneven sidewalks, and missing or difficult-to-use curb ramps. RT 541:9-543:21, 1002:11-22, 1031:20-1033:17, 1232:10-1233:4. The probative value of such testimony is undermined by the non-specific, generalized nature of the testimony offered.

104. Kimbrough, the mother of a minor class member, claimed that street corners lacking curb ramps were prevalent in her neighborhood. 823:16-829:22. When asked by Class Counsel which locations she encountered problems, Kimbrough answered, "All of them really," RT 823:19-20, and later adding that, "They are quite prevalent," RT 825:9-11. Yet, the only specific example discussed was the intersection at Paris Street and Avalon Avenue. RT 826:8-24, 829:1-2. Upon cross-examination, Kimbrough conceded that some of the street corners at this intersection, in fact, had curb ramps, and she had difficulty ascertaining which corners did and which ones did not. RT 824:13-825:11, 844:11-847:4.

105. Similarly, Grant had difficulty providing specific locations near the Embarcadero BART station where he encountered problems. RT 878:16-888:13. O'Neil complained about "many bad curb ramps," yet provided few specifics. RT 541:9-543:21. Cherry complained about cracked and uneven sidewalks in her neighborhood, but did not specify where she experienced these problems. RT 1031:20-1033:17.

106. Notably, none of the problem areas cited by class members or their parents were confirmed by Plaintiff's experts as failing to comply with federal or state access laws. Although Kirola's experts identified alleged access issues at other locations, the Court finds their opinions unpersuasive for the reasons set forth above. See Findings of Fact ¶¶ 180-196. The above notwithstanding, the fact that Kirola and some class members may have experienced difficulty accessing the City's public-right-of-way, while understandably frustrating, does not prove that the City has failed provide program access as required by the ADA.

107. Based on the record presented at trial, the Court is satisfied that the City's public right of way system, when viewed in its entirety, affords program access to mobility-impaired individuals. The lack of curb ramps at some street corners does not amount to a lack of program access. See Bird, 303 F.3d at 1021 ("Compliance under the [ADA and Rehabilitation Act] does not depend on the number of locations that are wheelchair-accessible; the central inquiry is whether the program, 'when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.'") (citations omitted). Indeed, Title II of the ADA does not require the installation of curb ramps at each and every street corner. See Cohen, 754 F.3d at 696; accord Carter, 224 Cal. App. 4th at 821; see also ADA Title II Technical Assistance Manual, II-5.3000 Curb Ramps ("To promote both efficiency and accessibility, public entities may choose to construct curb ramps at every point where a pedestrian walkway intersects a curb. However, public entities are not necessarily required to construct a curb ramp at every such intersection."). Despite this, the City endeavors to achieve curb ramp saturation; that is, a curb ramp at every corner. To that end, the City installs approximately 1,200 new curb ramps each year. RT 2785:17-2787:13, 2789:3-2790:18; PTX 0022 [003798]. Consistent with DOJ guidelines, the City prioritizes installation of these curb ramps by taking into account citizen requests and whether the proposed ramps are in high utilization areas, including governmental offices, public facilities, public transportation, public accommodations, and commercial districts. RT 1441:11-1442:15, 1617:2-1619:13, 1956:6-1958:16, 2416:19-22; PTX 0022; DTX G18; see also 28 C.F.R. § 35.150(d)(2) (providing that public entities should give "priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas").

108. Moreover, the City's curb ramp design standards in effect since 2004 require bi-directional curb ramps and the use of smooth transitions. Each curb ramp is uniquely designed for its designated location, and each design is cross-checked for ADA compliance pursuant to the Quality Assurance Checklist. The City utilizes a curb ramp grading system, paving guidelines, an inspection program and a priority matrix (part of the Curb Ramp and Sidewalk Transition Plan) to ensure that sidewalks remain accessible and curb ramps are installed and/or repaired where they are needed the most. Critical data regarding the City's progress is stored in the CRIS database, from which the City is able to ascertain where curb ramps are to be installed. The transition plan sets a timeframe for completing curb ramp saturation and identifies funding sources. These measures support the conclusion that the City is in compliance with its Title II obligations. E.g., Schonfeld, 978 F. Supp. at 1341 (finding that where a city "has constructed curb ramps where necessary to provide access along highly-trafficked routes, has allocated funding and established a schedule for future curb ramp construction, and is addressing the particular intersections identified by plaintiffs as well as other intersections in accordance with ADA priorities," it is in compliance with its Title II obligations).²⁴

109. In passing, Kirola attempts to make much of Hecker's 2009 expert report in which he found that the City had not yet installed every curb ramp necessary for program access. Dkt. 604, 6:20-22; see also RT 2795:19-2796:2. The trial record, however, does not establish the basis for his opinion or whether the opinion was still valid based on the conditions existing at the time of trial. In view of the evidence presented at trial showing the City's continuing progress toward program access, the Court finds that Hecker's 2009 program access conclusions, without more, fail to satisfy Kirola's burden of demonstrating that the City failed to provide program access to its public right-of-way.

110. With regard to sidewalks, Kirola's complaints present an issue of maintenance, as opposed to construction. In particular, she complains that the City only proactively inspects its 2,000 miles of sidewalks on a 25-year cycle, which she claims is too long. This contention lacks merit. The City inspects approximately 200 blocks per year, with the areas of the greatest pedestrian traffic given the highest priority. RT 2453:6-17. In view of the City's financial and staffing constraints, the Court finds nothing objectively unreasonable with this approach. It is also important to note that the City's inspection policy operates in conjunction with the SIRP, which as discussed more fully above, ensures that complaints regarding sidewalk accessibility are given high priority and remediated, whenever possible, within ninety days. RT 2454:13-2455:22. The City's proactive and reactive approach to ensuring sidewalk accessibility is reasonable, appropriate and supports a finding that the City affords program access to its sidewalks. See Schonfeld, 978 F. Supp. at 1341.

111. Program access to the City's public right-of-way also is enhanced by paratransit services and public transportation. RT 1636:4-12. The City operates and subsidizes a paratransit system that offers van and taxi service for persons with disabilities who are unable to use public transportation. RT 1634:18-1635:1, 1635:21-1636:3. Kirola testified that she regularly uses public transportation and paratransit, sometimes up to five or six times per week. RT 1391:9-17. However, she argues that paratransit is not an effective substitute because not all mobility-impaired persons are able to use its services, and it is not always reliable. Dkt. 618, 13:1-5. But the City does not rely exclusively on paratransit or its public transportation system to provide access for mobility-impaired persons. Those services are simply additional means utilized by the City to enhance access for mobility-impaired and other disabled persons. See 28 C.F.R. § 35.150 (b)(1). That the system may not operate perfectly at all times does not show that the City has failed to provide program access to its public-right-of-way system.

112. Kirola also complains that the City has failed to establish a definition of "program access" with respect to the public right-of-way, and that the City has failed to show that each allegedly non-complaint curb ramp identified at trial is the result of site constraints. Dkt. 604, 9:22-23; Dkt. 618, 5:7-10. The flaw in this argument is that it impermissibly attempts to shift the burden to the City, when the burden rests with Kirola. See Pierce, 526 F.3d at 1217; see also McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (noting the elements necessary to state a claim of disability discrimination under Title II).

113. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's public right-of-way.

^24. As indicated above, the City installed curb ramps at all the locations identified in the pleadings, RT 1392:3-16, effectively rendering Plaintiff's complaints regarding the curb ramps moot. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011) ("a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim.").

b) Library Program

114. The City's library program is presented through its network of libraries, which consists of a Main Library and twenty-seven branch libraries. RT 2222:13-15. At the time of trial, the City's Main Library and seventeen branch libraries had been made fully accessible, pursuant to the BLIP (Branch Library Improvement Program). Renovations of the three remaining libraries will be completed by 2014. RT 2227:7-21; 2132:23-2135:19; 1797:5-19. The three branch libraries that were not renovated under the BLIP program had access barriers removed in the 1990's, and since 2004, were the subject of additional access improvements, including automatic door openers. RT 1796:25-1797:4. Hecker, the City's expert, credibly testified that the number, distribution and features of the City's accessible libraries are sufficient to provide meaningful access to its library program. RT 2763:25-2764:9.

115. Kirola has failed to carry her burden of proving that the City's library program, when considered in its entirety, fails to provide program access for mobility-impaired persons. Neither Kirola nor any class member testified to having encountered any architectural barriers at any of the City's twenty-eight libraries. Although Kirola occasionally encountered misplaced stools at three libraries, no evidence was presented that the stools were anything other than a temporary obstruction, or that they impeded her or any class members' ability to utilize any service at those individual libraries or the City's library program in its entirety. Likewise, none of Kirola's experts offered any opinions or findings specifically regarding the errant library stools or any testimony to support her claim that the City's library program fails to afford program access.

116. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's library program.

c) Aquatic Program

117. The City operates nine public swimming pools as part of its aquatic program. RT 2763:21-2765:5. As of 2009, six of the nine pools were made accessible. RT 2767:8-2769:17. At trial, Hecker credibly testified that the number and distribution of accessible pools located throughout San Francisco is sufficient to provide meaningful access to the City's aquatic program. RT 2768:4-11.

118. Neither Kirola nor class members presented any compelling evidence to establish a denial of program access to the City's aquatics program. The three pools Kirola complained about were not designated as accessible at the time of trial. However, program access does not require the City to make every pool accessible. Rather, the City ensures program access to it aquatics program through its other pools. Notably, Kirola acknowledged that she regularly uses Hamilton and MLK Pools—the latter of which is her "favorite"—without difficulty. RT 1392:17-1393:23.

119. The testimony of class members likewise fails to demonstrate a lack of program access. Kimbrough complained that the ramp at Balboa Pool is too steep for her younger disabled daughter to access the pool area and watch her sister take swim lessons. RT 848:18-24, 838:12-839:19. Although Coffman Pool is only one mile further away and fully accessible, Kimbrough stated that she does not want to take her family there because her eldest daughter's swimming instructor teaches at Balboa Pool, and she feels that Coffman Pool is not located in a safe neighborhood. RT 849:10-17, 852:19-853:2.

120. The Court finds that Kimbrough's testimony fails to demonstrate a denial of program access. Watching a sibling take swim lessons is not a program, activity, or service provided by the City. See Daubert, 760 F.3d at 987 ("experiences that are merely incidental to normal government functions are not fairly characterized as government programs under 28 C.F.R. § 35.150."). But even if Balboa Pool were inaccessible, the fact remains that there are a variety of other pools which are fully accessible and available to her, including Coffman pool, which is only a mile further away.²⁵ That Kimbrough may personally dislike Coffman Pool, without more, has no bearing on whether the City is in compliance with its obligation to render its aquatic program accessible to mobility-impaired persons on a program access basis. See Daubert, 760 F.3d at 988.

121. Monasterio, also a mother of a class member, testified that the closest swimming pool to her is Garfield Pool, which lacks "a safe space for her to sit and shower." RT 1233:21-24. Although Monasterio thought Garfield Pool was designated as accessible, it is, in fact, designated as having only limited accessibility. RT 1234:10-12; DTX F16. In any event, Monasterio's negative experience with one of the City's nine pools does not demonstrate a denial of program access to the City's aquatic program.

122. Cherry testified that she once attempted to take a swimming class at MLK Pool but that she had been forced to discontinue the class as a result of the pool's lift being consistently broken over a one-month period. RT 1043:15-1045:19. The inoperability of the lift presents a maintenance, as opposed to a barrier, issue. Nonetheless, the temporary inaccessibility to a swim class at a particular pool does not demonstrate a lack of program access, since the City is not required to provide identical services at each pool. See Pierce, 526 F.3d at 1222 ("We also emphasize that the district court should look at the offerings as a whole and in their entirety and thus the court is not required to ensure that each individual program or service offered at Theo Lacy and Musick is offered in complete parity with an offering at the Central Jail.").²⁶

123. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's aquatic program.

^25. Plaintiff's expert Steinfeld opined that Coffman Pool and Martin Luther King Jr. Pool (two accessible pools) are too far from Balboa Pool to be considered meaningful alternatives. RT 673:4-23. Kimbrough, however, testified that Coffman Pool is only two miles from her home. RT 852:18-853:2, 848:18-24.

^26. As an ancillary matter, Kirola complains that, in violation to 35 C.F.R. § 35.163(b) the City fails to provide signage at parks and swimming pools directing disabled persons to other accessible areas of a park or other accessible pools. Dkt. 604, 18, 21. Section 35.163(b), provides, in pertinent part, that "[a] public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities." There is no mention of providing signage regarding other accessible facilities.

d) RecPark Program

124. Kirola's evidence regarding the City's RecPark program similarly fails to show a denial of program access. Of the City's 220 parks, Kirola only complained about the steep entrance and paths at Alamo Square Park, which she acknowledged is located on a steep hill. RT 1385:3-16, 1394:2-4. Although Kirola testified that she could not access the playground there, she did not claim that the park was otherwise inaccessible to her. RT 717:10-21. Nor did she offer any testimony regarding any inability to access the multitude of other parks operated by the City.

125. Cherry, Kimbrough and Monasterio testified regarding accessibility issues at a handful of the City's 220 parks. Much of the testimony was sparse and non-specific. For example, Cherry claimed that all of the parks in her area "need help" and "haven't been maintained the way they should," but she did not elaborate further. RT 1041:1-5. Monasterio stated that her daughter could not enter the Tea Garden, but did not explain why. RT 1237:23-1238:1. Other accessibility complaints pertained to issues inherent in the terrain. Monasterio stated that the paths at Glen Canyon Park are uneven or unpaved. RT 1234:16-1237:2. Yet, she acknowledged that the park is located in a "Eucalyptus forest" that is "very wild." RT 1234:16-1237:2. Similarly, Kimbrough complained about steep pathways leading to the playground at Holly Park, which is located at the "top of a hill." RT 837:19-838:5. The testimony of class members, at best, shows that they occasionally encountered barriers at certain parks; however, it does not establish that they were denied access to RecPark programs, services and activities in their entirety. Title II of the ADA mandates meaningful access on a program access level, not on a neighborhood or facility-specific basis.

126. In contrast, the City presented compelling evidence to demonstrate its compliance with Title II of the ADA. The athletic fields, play areas and recreation centers (along with open space that is provided at virtually every park), represent core features that together provide the range of services, programs and activities available at the City's parks. Across San Francisco, the City provides twenty accessible athletic fields, and eight additional athletic field facilities that were, at the time of trial, in the planning phase and either fully funded or in design or construction. RT 1818:3-18; DTX F34. Notably, Hecker credibly opined, based on his review of the "blue dot" designations determined Scott, as well as his training, knowledge and experience, that the number and distribution of these twenty accessible athletic fields is sufficient to provide program access to the City's athletic programs. RT 2769:18-2771:2.

127. The City provides forty-three accessible Recreation Centers and Clubhouses, which have either been renovated since 2000, or received a specific barrier removal since 1992. Additional facilities are "in the pipeline" for renovation. RT 1816:5-1817:1; DTX F40. Focusing solely on Recreation Centers, which are larger than Cluhouses and include a gymnasium, fifteen out of twenty-three facilities are accessible, and five additional Recreation Centers have received funding for access renovations, or are already in design or construction. DTX 40. The number and distribution of accessible Recreation Centers and Clubhouses are sufficient to provide program access to the programs housed in these facilities. RT 2771:3-2772:12. Likewise, the City provides an equitable distribution of accessible children's play areas throughout San Francisco. RT 1815:9-20; PTX 148A.

128. Kirola contends that the Community Garden Program is not accessible. The Community Garden is a program intended for people who do not have backyards, and serves organized community clubs that operate each community garden. RT 2281:10-2283:15. Only group members are eligible to participate in the "program" offered at the community garden sites. Id. RecPark makes access improvements each time it performs construction work at a community garden. Id. In addition, it accommodates each individual access request it receives from club members who actually use the garden. Id. Neither Kirola, nor any class member who testified at trial, belongs to any community club that operates a community garden, nor has Kirola ever attempted to visit a community garden as a member of the public. Kirola's claims based on the community gardens fail for lack of standing, and for lack of proof.

129. Kirola, through her experts, also asserts that the City fails to provide program access in its parks, because some "unique" park facilities are not "fully accessible" and "ADAAG-compliant." This assertion is uncompelling for a number of reasons. First, this contention erroneously focuses on a "unique facility," without identifying any unique program that is only offered at that facility. Second, because ADAAG does not apply to playgrounds or to outdoor developed recreational areas, Kirola has applied an inapplicable standard. In any event, as Kirola's experts readily acknowledged, program access is a much more subjective standard than ADAAG-compliance, RT 1366:3-13, and only a small portion of a particular park must be accessible in order to provide the requisite program access, RT 717:10-21.

130. Kirola argues that Golden Gate Park is unique and therefore must be fully accessible. Assuming arguendo that Golden Gate Park should be analyzed in isolation, the Court finds that the City provides meaningful access thereto. Golden Gate Park has an extensive network of accessible paths, with accessible parking and accessible restrooms disbursed throughout the park, providing ample opportunity for class members with mobility disabilities to enjoy Golden Gate Park's varied landscapes. RT 1819:2-1821:20, 1824:14-1825:6; DTX F37. The popular destinations in Golden Gate Park—namely, the Conservatory of Flowers, the Arboretum and the Japanese Tea Garden, are also accessible.

131. Even if the Court accepted Kirola's premise that the path of travel through the formal gardens in front of the Conservatory of Flowers interferes with program access, her analysis ignores additional accessible parking on JFK Drive, which offers a shorter route to the Conservatory entrance. RT 2112:24-2114:6; DTX F37. The Arboretum offers an extensive network of accessible trails (evaluated according to the proposed federal standards for outdoor areas), and two sets of accessible restrooms. RT 2114:7-2116:23; DTX F37.5. The Japanese Tea Garden has accessible paths, to the extent practical, without necessitating fundamental alterations to the facility. RT 1360:20-1362:1. In any event, additional improvements for the Japanese Tea Garden were scheduled to be completed shortly after trial, and will further enhance access to the Tea House. RT 2325:4-20.

132. Similarly, Kirola has made an insufficient showing of inaccessibility as to Dolores Park. At the time of trial, RecPark was commencing a complete $16 million renovation of Dolores Park that will render the park completely accessible. RT 2278:3-2279:12. RecPark is also planning renovations at Glen Canyon Park and estimates the cost at $20-$40 million. The 2008 Bond provides $5.8 million for Glen Canyon Park, and RecPark will prioritize work there based on community input. RT 2279:13-2280:14.

133. Next, Kirola argues that all elements of the "blue dot" facilities are not entirely compliant with facility access regulations. As discussed earlier, MOD uses color-coded spreadsheets and maps to track the status of each of the approximately 700 facilities surveyed by Hopper and illustrate the distribution of accessible facilities across the City. Blue dots are placed on those maps to indicate where a capital improvement project has taken place since 2000. See Findings of Fact ¶ 77.

134. Not every aspect of a facility where a program is offered must necessarily be fully accessible. See Daubert, 760 F.3d at 987. Nor does Title II of the ADA require complete parity of services at each of the facilities through which the City offers its programs. See Pierce, 526 F.3d at 1222; see also RT 717:10-21 (testimony by Plaintiff's expert that only a "small part of a park" must be accessible to provide program access). That aside, Kirola overlooks the fact that the City's "blue dot" designation is not intended to signify that every element of the facility was 100 percent compliant with all applicable facilities access regulations; rather, it signifies that the facility was fulfilling the City's program access intent under UPhAS. RT 1464:14-23. In other words, a blue dot indicates only that the facility offers some accessible program, not that every physical element of the facility is compliant with disability access regulations. In addition, Kirola's arguments regarding the "blue dot" facilities are unpersuasive given that her experts admittedly did not inspect each of the City's "blue dot" libraries, pools, and parks; as to those "blue dot" facilities which they did visit, their site assessments were shown by the City to be unreliable.

135. In sum, the Court finds no merit to Kirola's claim that she or any class member has been deprived of program access to the City's RecPark program.

2. New Construction and Alterations

136. Pursuant to 35 C.F.R. § 35.151, the City has elected to use ADAAG as its standard for newly constructed or altered facilities. RT 1919:20-24. According to Kirola, the City's policies and practice are insufficient to ensure "strict compliance" with ADAAG as to City facilities newly constructed or altered after January 26, 1992. Dkt. 604, 22:11-24:5. In particular, Kirola contends that her experts' inspections of the City's libraries and parks revealed disability access barriers in violation of ADAAG or the California Building Code. Id.

137. The Court has found the opinions of Kirola's experts, including those relating to the City's compliance with ADAAG and the California Building Code, to be unreliable. E.g., Findings of Fact ¶ 205-228. Among other things, Kirola's experts relied on unqualified individuals to conduct their inspections, and applied faulty and inconsistent methodologies and inapplicable access requirements. They also failed to properly take into account dimensional tolerances and their impact on the variation. Cherry v. City Coll. of San Francisco, C 04-04981 WHA, 2006 WL 6602454, *6 (N.D. Cal. Jan.12, 2006) ("[T]he burden is on plaintiffs to prove that the variance exceeds the allowed tolerance. It is not enough to simply show that a particular bathroom stall, for example, is less than the required width. The approximate extent of any shortfall must be proven. And, the dimensional tolerance at the time of construction must be proven.").

138. In any event, the few isolated departures from ADAAG's dimensional requirements in newly constructed or renovated facilities identified by Kirola's experts do not establish any systemic deficiency in the City's policies or practices for the design and construction of publicly funded construction projects. RT 2040:1-2046:12 (noting that only 1.6% of the items identified by Kirola's experts' "needed to be changed"). No facility or building is perfect. RT 2044:9-2046:12; 2733:14-2734:6. A typical building has thousands of access measurements; a single set of restrooms has hundreds of access measurements. RT 1357:2-9. Indeed, Plaintiff's expert Gary Waters confirmed that an architect's professional standard of care is to deliver a building that "generally conforms" to access requirements, and that is the standard he used as court appointed expert monitoring settlement compliance in another ADA action previously pending in this District. RT 1353:19-1357:1.

139. In sum, the Court finds that the few variations from ADAAG or the California Building Code with respect to new construction or alterations are insufficient to show that Plaintiff or class members were denied meaningful access to the City's programs, services or activities or that they are entitled to relief on a class-wide basis.

3. Grievance Procedure

140. Title 28, Code of Federal Regulations, section 35.107(b), provides that: "A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part." 28 C.F.R. § 35.107(b). Kirola argues that the City's complaint process is deficient because it fails to provide for "prompt and equitable" resolution, as specified in § 35.107(b). Dkt. 604, 15:22-16:8.

141. The City argues that there is no private right of action to enforce 28 C.F.R. § 35.107(b). Dkt. 666, 17:27-18:6. Although there is no controlling authority on this specific issue, the Ninth Circuit's reasoning in Lonberg supports that conclusion.²⁷ Lonberg held that there is no private right of action to enforce federal regulations requiring public entities to develop transition plans under 28 C.F.R. § 35.150(d). 571 F.3d at 852. In reaching its decision, the court reasoned that "a public entity may be fully compliant with [Title II of the ADA] without ever having drafted a transition plan, in which case, a lawsuit forcing the public entity to draft such a plan would afford the plaintiff no meaningful remedy." Id. at 851; see also Ability Ctr. of Toledo v. City of Sandusky, 385 F.3d 901, 914 (6th Cir. 2004) (same); Cherry v. City Coll. of San Francisco, No. C 04-4981 WHA, 2005 WL 2620560, *4 (N.D. Cal., Oct. 14, 2005) ("there is no indication that a public entity's failure to develop a transition plan harms disabled individuals, let alone in a way that Title II aims to prevent or redress. Indeed, it is conceivable that a public entity could fully satisfy its obligations to accommodate the disabled while at the same time fail to put forth a suitable transition plan.").

142. The rationale underlying Lonberg applies equally to the question of whether the grievance procedure regulation is subject to private enforcement. Like ADA transition plans, the existence or non-existence of a grievance policy does not, in itself, deny a disabled person access to a city's services. A public entity may be fully compliant with Title II without having drafted a grievance policy, let alone a grievance policy that mandates specific deadlines for reaching a resolution on all complaints. See Lonberg, 571 F.3d at 851; see also Duffy v. Freed, No. 09-2978 (JBS/JS), 2010 WL 3740659, *4 (D.N.J. Sept. 17, 2010), aff'd, 452 F. App'x 200 (3rd Cir. 2011) ("Although Plaintiff asserts that public entities have a legal obligation under the ADA to launch an investigation into any complaint of a violation of Title II, Plaintiff cites no language of the ADA and the Court finds no support for this proposition in the statute. The public entity's obligation is to not discriminate. Such entities make additional efforts to resolve any potential discrimination by implementing proactive internal procedures according to the DOJ regulations, but the adequacy of these procedures is not itself an ADA concern.").

143. Other circuit and district courts have uniformly concluded that no private right of action exists to enforce 35 C.F.R. § 35.107(b). See Duffy, 452 F. App'x 200, 202 ("[T]here is no private right of action to enforce regulations regarding public entities' ADA grievance procedures[.]"); Giustiniani v. Fla. Dep't of Fin. Servs., No. 3:11-cv-792-J-37 MCR, 2012 WL 2127733, *2 (M.D. Fla. June 12, 2012) (holding that 28 C.F.R. § 35.107(b) does not create a private right of action); DeLeon v. City of Alvin Police Dep't, No. H-09-10222010 WL 4942648, *4 n.10 (S.D. Tex. Nov. 30, 2010) (quoting Duffy v. Freed, No. 09-2978 (JBS/JS), 2010 WL 3740659 (D.N.J. Sept. 17, 2010)) ("'The failure of a Title II public entity to adequately implement or abide by internal complaint procedures does not itself state an ADA claim, because the statute does not require these procedures.'"); see also Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 278 (D. Conn. 2007) (regulation implementing section 504 of the Rehabilitation Act, which required establishment of grievance procedures, was not privately enforceable); Abrahams v. MTA Long Island Bus, 644 F.3d 110, 119-20 (2d Cir. 2011) (regulation requiring creation of mechanism for ongoing public participation in development and assessment of services for disabled individuals not privately enforceable).

144. Attempting to sidestep the issue of whether there is a private right of action to enforce 28 C.F.R. § 35.107(b), Kirola argues that she does "not challenge the City's grievance procedure standing on its own" but rather "challenge[s] the sufficiency of the grievance procedure as a means of providing program access." Dkt. 618, 12:2-3; see also Dkt. 672, 24:28-25:1 (arguing that the City's "access upon request" policy of addressing access barriers is not a lawful method for providing program access). The evidence does not support Kirola's position. While the record establishes that the grievance procedure is an important aspect of the City's efforts to ensure accessibility for disabled persons, it also firmly establishes that the grievance procedure merely supplements the City's proactive efforts to provide accessibility. See, e.g., RT 64:1-17, 1617:2-1618:3, 2863:14-2867:25. In other words, the City endeavors to provide program access through both proactive and reactive measures—i.e., undertaking significant accessibility planning across numerous City departments and proactively seeking input from the disabled community in the course of such planning, while also responding to requests and complaints from the public. The City's efforts therefore do not constitute an "access upon request" approach to accessibility. C.f. Putnam v. Oakland Unified Sch. Dist., 1995 WL 873734, *10 (N.D. Cal. 1995) ("The approach of taking no action to render programs accessible until a student or parent identifies an accessibility problem does not make a program 'readily' accessible."); Huezo, 672 F. Supp. 2d at 1063 ("The District concedes that to receive an accommodation of any kind—including basic services such as accessible furniture and transportation to otherwise inaccessible parts of campus—each disabled student must fill out certain forms prior to the beginning of each semester.").

145. Even if the Court were to find a private right of action exists to challenge the City's grievance procedure's compliance with 28 C.F.R. § 35.107(b), the evidence does not support the conclusion that any violation of this regulation has transpired.

146. MOD oversees the City's grievance procedure for handling public complaints regarding disabled access to its facilities, programs and services. A complaint form is posted on MOD's website. RT 1579:23-1580:12-1581:22; DTX A35 [000105-109]. Upon receipt of a complaint, MOD sends the complaint to the ADA Coordinator for the appropriate department, which, in turn, investigates the matter. Upon review and approval by MOD, the ADA Coordinator and department head respond to the complaint within thirty days. DTX A35 [000105]; RT 1866:19-25. Because each complaint is unique, resolution of the grievance may, in some instances, require more than thirty days to finally resolve. RT 2001:2-7; 2385:14-2386:22; DTX A15.

147. Fraguli is in charge of the grievance procedure. Only 20 percent of the grievances she received related to physical access—the majority of which were curb ramp requests. RT 1868:9-1869:5. Fraguli has never received a complaint from Kirola, O'Neil, Kimbrough, Grant, DeChadenedes or Monasterio. RT 1870:14-1871:9. Nevertheless, the City learned, through other channels, that Kirola submitted a single curb ramp request, and that Monasterio and O'Neil submitted multiple requests. RT 1383:21-1392:16, 568:6-583:22, 1226:23-24, 1128:23-1230:6, 1246:2-1249:16. The trial record shows that upon becoming aware of these requests, the City installed almost all of the requested ramps within one to two years, while the remaining curb ramps were slated for installation within a year of trial. RT 1228:18-1229:6,1384:6-10, 1391:18-1392:16, 2001:8-2002:5, 2419:13-2420:4, 2422:22-2424:5. Moreover, upon reviewing the evidence presented and relevant legal authorities, the Court concurs with Hecker's opinion that the City's grievance procedure is consistent with the requirements and provisions of the ADA regulations. RT 2727:5-19

148. For the reasons stated above, the Court finds that Kirola's challenge to the City's grievance procedure is legally without merit.

^27. While both Armstrong, 275 F.3d at 859, 862, and Pierce, 761 F. Supp. 2d at 953-54, 957, discussed the ADA's grievance procedure requirement, neither court specifically addressed the question of whether there is a private right of action to enforce 28 C.F.R. § 35.107.

4. Maintenance Policies

149. Kirola alleges that the City's policies and practices for the maintenance of accessible features are inadequate because they "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. A public entity's maintenance obligation is set forth in 28 C.F.R. § 35.133, which provides that 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).

150. Under Title II, a public entity's maintenance obligation applies only "to the maximum extent feasible," and service interruptions are inappropriate only if they "persist beyond a reasonable period of time." 28 C.F.R. Part 35 App. A; e.g., Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083-84 (N.D. Cal. 1997) (finding that a plaintiff can succeed on a challenge regarding a public entity's maintenance obligations only if she establishes that the maintenance issues are "recurrent" and constitute a "pattern," as opposed to being "isolated or temporary"); Cherry, 2006 WL 6602454, *7, *10 (noting that while obstructions "due to chairs, trash cans, potted plants, filing cabinets and other furniture intruding upon the required clearance" may constitute accessibility violations "unless the obstruction is temporary or isolated," the plaintiffs failed to meet their burden of demonstrating that the blockages were "persistent"); Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1380 (N.D. Ga. 2002) ("Although Plaintiffs have documented a number of cases where they encountered inoperable elevators in MARTA stations, their evidence is insufficient to demonstrate a systemic problem that would rise to the level of an ADA violation. It is simply a fact of life that elevators will break down on occasion.").

151. Both libraries and RecPark facilities are subject to rigorous inspection and maintenance policies. At the City's libraries, staff utilize a Daily Facility checklist in connection with their facilities inspections each morning. To ensure access, staff move furniture or other objects that may impede the path of travel, and report any access problems that cannot be safely or readily corrected. RT 2235:22-2237:13, 2252:10-2253:21; DTX A45. Kirola does not challenge the efficacy of the checklist per se, but complains that other patrons occasionally leave a step stool in the aisles of the library, obstructing her path. RT 1385:22-1386:11. She contends that the current Library policy, which requires staff to conduct a single daily inspection of library facilities, should be replaced by one requiring full inspections throughout the day. Dkt. 672, 24:20-23. But even multiple daily inspections would not guarantee that a mobility-impaired library patron would never encounter misplaced step stools left by other library patrons. Ultimately, however, Kirola has not persuasively demonstrated that misplaced step stools are architectural barriers or that they denied her program access to the City's library program in its entirety.

152. Kirola has likewise failed to show that RecPark's maintenance policies are inadequate under the ADA. RecPark has implemented written policies that prioritize maintenance requests relating to disabled access to parks and facilities, and strives to resolve these requests within forty-eight hours whenever possible. RT 2306:3-2309:14; DTX A10. RecPark also uses an Employee Daily Facility Preparation Quick-Sheet that requires daily inspections of its buildings and facilities for safety hazards or other issues that might impact disabled access before they are opened to the public, RT 2315:15-2317:18; DTX Z60, and a Semi-Annual Facility Accessibility Survey, which includes a detailed inspection checklist and correction of items that may affect physical access to the facility, RT 2318:2-2319:18; DTX Z61. Further, RecPark staff conduct regular inspections of outdoor facilities which focus on the path of travel, including pathways' surface quality, gates and latches, and barriers such as low hanging tree limbs. RT 2320:2-2321:6.

153. Lastly, the Court rejects Kirola's claim that the City's policies governing sidewalk repair are not in compliance with the ADA. As discussed more extensively above, the City's sidewalk maintenance policies, which are embodied in the SIRP and ASAP, adequately address sidewalk access issues. See Findings of Fact ¶¶ 62-65. Similarly, for reasons already discussed, the Court discounts the opinions from Kirola's experts regarding sidewalk maintenance issues. See id.

154. In sum, the Court finds that Kirola has failed to demonstrate that the City has violated its maintenance obligations, as set forth in 28 C.F.R. § 35.133(a).

5. Safety Hazards

155. Kirola alleges that the City is in violation of the ADA due to the lack of a general policy for addressing safety hazards. She alleges that "it is well-settled that public entities have a duty to remove disability access barriers that constitute safety hazards to persons with mobility disabilities" and that "the City has no written policies or practices in place to either identify safety hazards, or ensure their prompt removal from the City's pedestrian right of way and the other facilities at issue herein." Dkt. 604; 20:19-21:7. There is no authority holding that a public entity must adopt a written policy or procedure relating specifically to safety hazards. But even if there were, Kirola has failed to present any evidence establishing that the lack of such a policy resulted in the denial of program access to any particular program, service or activity.

156. Kirola argues that if the City had adopted and implemented "effective policies for the identification and prompt removal of safety hazards, it is likely that [she] would not have encountered steep paths of travel and entrances, sidewalks with excessive cross slopes and broken pavement, and uncovered tree wells[.]" Dkt. 673, 17:1-4. This contention is entirely speculative and unsupported by the record established at trial. Further, irrespective of whether the City has a written policy specific to the removal of safety hazards, the trial record shows that the City's existing policies and procedures adequately address these types of concerns. Both the library and RecPark programs use daily inspection protocols that address issues deemed to constitute safety hazards, such as wet spots or broken equipment. DTX A45; DTX Z60; DTX Z61. RecPark further prioritizes the resolution of potential safety hazards by categorizing each complaint received into one of three categories: emergencies (which are to be addressed immediately); health, safety, and accessibility issues (which are to be addressed within 48 hours); and routine issues. RT 2306:3-2308:21.

157. The trial record also establishes that DPW prioritizes resolution of potential safety hazards in the City's public right-of-way via its curb ramp grading system, which grades curb ramps with excessive running slopes—along with curb ramps with both excessive running slopes and excessive gutter slopes—lower than other curb ramps, thereby prioritizing them for replacement. RT 2453:18-2454:12. The City worked with members of the City's disabled community in creating the curb ramp grading system, ensuring that the system assigned the lowest scores to curb ramp conditions which the disabled community felt to be the most problematic or dangerous. RT 1607:17-22.

158. In sum, the Court finds that Kirola has failed to demonstrate that the City's lack of a specific policy for hazard removal violates Title II of the ADA.

6. RecPark Website

159. Kirola complains that the RecPark website improperly defines an "accessible park" as one that has an "accessible entrance" and "at least one recreational opportunity." Dkt. 662, 13:4-27. As explained above, the City does not rely on this statement as its standard for establishing program access to it programs, services and activities. The information on the website is intended simply to inform the public about sites they may wish to visit, and visitors are expressly invited to inquire further for more detailed information. RT 1502:13-16; PTX 3875 [075767]. There is no evidence that the City's definition of "accessible" for the purpose of its RecPark website is in any way connected to City policy regarding its program access obligations.

160. In sum, the Court finds that Kirola has failed to demonstrate that the City's RecPark website demonstrates the City's failure to provide program access to its park system.

7. Self-Evaluation and Transition Plans

161. Kirola alleges that the City has failed to formulate and implement "an adequate self-evaluation plan" or transition plan, and seeks to compel the City to do so under the ADA, California Government Code section 11135, and their respective regulations. Dkt. 294, 14:6-7, 19:21-24.²⁸ The record shows that the City has, in fact, drafted the transition plans for both its public right-of-way and facilities. While it is unclear whether the City has drafted a self-evaluation plan, the authorities are clear that Plaintiff has no legal basis to sue based on the lack of such a plan.

a) ADA

162. ADA regulations direct public entities to adopt transition and self-evaluation plans. See 28 C.F.R. § 35.150(d)(1) ("a public entity . . . shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete [structural changes to facilities to achieve program access]"); 35.105(a) ("A public entity shall . . . evaluate its current services, policies, and practices, and the effects thereof "). Neither regulation expressly creates a private right of action to enforce its provisions.

163. "In determining whether a particular regulation is enforceable through a statute's private right of action, [courts] must look to the statute itself and determine whether it displays Congress's intent to create the private right purportedly contained in the regulation." Lonberg, 571 F.3d at 850. "Only those regulations effectuating the statute's clear prohibitions or requirements are enforceable through the statute's private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable." Id. at 851.

164. Section 202 of the ADA, 42 U.S.C. § 12132, prohibits public entities from denying qualified disabled individuals from "meaningful access" to their services and programs. Lonberg, 571 F.3d at 851. In view of this prohibition, the Ninth Circuit held in Lonberg that the failure to prepare a transition plan is not subject to private enforcement. Id. The court explained that the statute "says nothing about a public entity's obligation to draft a detailed plan and schedule for achieving such meaningful access." Id. More fundamentally, "[t]he existence or non-existence of a transition plan does not, by itself, deny a disabled person access to a public entity's services, nor does it remedy the denial of access." Id. Citing Lonberg, this Court has likewise ruled that there is no private of action to enforce ADA regulations requiring the creation and implementation of a self-evaluation plan. Skaff v. City of Corte Madera, No. C 08-5407 SBA, 2009 WL 2058242, *3 (N.D. Cal. Jul. 13, 2009). Given these authorities, the Court finds that Kirola cannot seek to compel the City to prepare and implement a transition or self-evaluation plan under ADA regulations.

b) California Law

165. For much the same reasons, the Court rejects Kirola's companion claim predicated upon California Government Code section 11135 and two of its implementing regulations, Cal. Code Regs., title 22, sections 98251 (Self-Evaluation) and 98258 (Transition Plan). The state regulations governing the creation and implementation of transition and self-evaluation plans are patterned after the aforementioned federal regulations and are worded largely the same, except that the state regulations are stated in permissive (i.e., "should"), as opposed to mandatory (i.e., "shall") terms. As such, it would be anomalous to conclude, as Kirola suggests, that California regulations impose a mandatory duty upon public entities to develop transition and self-evaluation plans when no such obligation exists in the federal regulations upon which they are patterned. See Darensburg v. Metropolitan Transp. Com'n, 636 F.3d 511, 519 (9th Cir. 2011) (applying federal law to claim brought under California Government Code section 11135); Kamen v. Lindly, 94 Cal. App. 4th 197, 203 (2001) ("Where, as here, California law is modeled on federal laws, federal decisions interpreting substantially identical statutes are unusually strong persuasive precedent on construction of our own laws.").

166. The Court is aware that it previously intimated that Kirola could pursue claims predicated on California's self-evaluation and transition plan regulations. See Kirola v. City and Cnty. of San Francisco, No. C 07-3685 SBA, 2010 WL 1459725, *1 (N.D. Cal. Apr. 12, 2010). In opposing Plaintiff's motion for leave to file an amended complaint, the City argued, inter alia, that permitting the proposed amendment was futile because the regulations did not impose any mandatory duty to develop or implement either a transition or self-evaluation plan. Dkt. 205, 12:21-15:2. The Court rejected the City's argument, concluding that it could not be logically reconciled with California Government Code § 11139, which expressly provides a private right of action to enforce rights conferred under Section 11135 and its implementing regulations. Kirola, 2010 WL 1459725, *1. After further consideration of this matter, however, the Court reconsiders that conclusion. See United States v. Smith, 389 F.3d 944, 949 (9th Cir. 2004) (holding that a district court may sua sponte reconsider a prior, interlocutory ruling over which it has continuing jurisdiction).

167. When Section 11135 was originally enacted in 1977, it did not include an express private right of action. Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 594 (2008). In Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556 (1992), the California Court of Appeal subsequently declined to find an implied right of action. "In response to Arriaga, the Legislature, in Assembly Bill No. 1670 amended Government Code section 11139 to expressly provide for a private right of action, but expressly limited enforcement to a 'civil action for equitable relief.'" Donavan, 167 Cal. App. 4th at 594. Section 11139 provides, in relevant part, as follows: "This article and regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies." Cal. Gov. Code § 11139.

168. Although Section 11139 created a private right of action to enforce rights conferred under Section 11135 and its regulations, it does not automatically follow that all regulations promulgated under Section 11135 necessarily create a mandatory duty, and hence, a private right of action based on the failure to prepare and implement either a transition plan or self-evaluation plan. Section 11135 is a general anti-discrimination statute, pursuant to which a broad range of regulations have been adopted to implement its provisions. Cal. Code Regs. tit. 22, §§ 98000-98413. Regulatory language is to be construed in "its plain, commonsense meaning," giving meaning, where possible, "to every word and phrase in the regulation . . . as a whole so that all of the parts are given effect." Butts v. Bd. of Trs. of the Cal. State Univ., 225 Cal. App. 4th 825, 835, (2014). Regulations are to be harmonized together, see Hoitt v. Dept. of Rehabilitation, 207 Cal. App. 4th 513, 524 (2012), and construed in the context with the statutes which they implement, see Wollmer v. City of Berkeley, 193 Cal. App. 4th 1329, 1349 (2011).

169. The regulations implementing Section 11135 expressly differentiate between those regulations that are mandatory and those that are advisory. Cal. Code Regs. tit. 22, § 98010. Specifically, the regulations provide that: "'Should' means advisory " while "'Shall' means mandatory ." Id. (emphasis added); Comunidad En Accion v. Los Angeles City Council, 219 Cal. App. 4th 1116, 1125 (2013) (holding that the definitions section forth in the California Code of Regulations, title 22, section 98010, apply to California Government Code section 11135). Here, the transition and self-evaluation plan regulations at issue use the term "should," as opposed to "shall." Id. §§ 98251(b), 98258. In view of the fact that the promulgating agency expressly differentiated between "should" and "shall" and ascribed different significance to each term, it would be incongruous to construe Section 11139 as creating a mandatory duty or conferring a private right of action to enforce the transition and self-evaluation plan regulations, which are merely advisory in nature. See Wollmer, 193 Cal. App. 4th at 1349. Thus, the Court finds that although Section 11139 created a private right of action to enforce rights conferred under Section 11135 and its regulations, it does not transmute the advisory nature of the self-evaluation and transition plan into a mandatory duty.

170. Even if the regulations at issue imposed a mandatory duty, Kirola has failed to show that Section 11135 is applicable here. Section 11135 applies only to a program or activity operated by the state or "[is] funded directly by the state, or receives any financial assistance from the state." Cal. Gov. Code § 11135(a). No such showing has been made. That notwithstanding, any obligation created by the state's transition and self-evaluation plan regulations runs to the applicable state agency, as opposed to the City. Both of the applicable regulations include the language "should be required by the responsible State agency ," suggesting that any alleged duty under each regulation falls on state agencies rather than on the recipient of state funds. See 22 Cal. Code Reg's §§ 98251(a)(1), 98258 (emphasis added). Finally, Kirola has failed to demonstrate that she or class members were denied meaningful access to the City's programs, services and activities, but for its failure to adopt and implement "a transition plan for the removal of access barriers as required by California Government Code § 11135." Dkt. 672, 25:26-28.

171. For the reasons discussed above, the Court finds that Kirola's claim based on the City's alleged failure to develop, adopt and implement a transition plan or self-evaluation plan fails both procedurally and substantively.