KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

II. BACKGROUND

A. TITLE II OF THE ADA

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

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

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

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

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

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

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

^1. By way of comparison, Title III, which applies to private entities operating a "place of public accommodation," imposes more stringent requirements aimed at ensuring that every facility is equally accessible to disabled persons. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004); 1 Americans with Disab.: Pract. & Compliance Manual § 2:44. This means, for example, that each and every store operated by a retailer must be ADA compliant.

B. CASE OVERVIEW

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

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

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

During the interim, on June 7, 2010, the Court granted Plaintiffs' motion for class certification, and certified the following class pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2):

All persons with mobility disabilities who are allegedly being denied access under Title II of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, California Government Code Section 11135, et seq., California Civil Code § 51 et seq., and California Civil Code § 54 et seq. due to disability access barriers to the following programs, services, activities and facilities owned, operated and/or maintained by the City and County of San Francisco: parks, libraries, swimming pools, and curb ramps, sidewalks, cross-walks, and any other outdoor designated pedestrian walkways in the City and County of San Francisco.

Dkt. 285, 7:19-25 (emphasis added). Having previously denied Plaintiffs' request to join Pillay as an additional party-plaintiff, the Court granted their remaining request to appoint Kirola as the class representative. Id., 7:26.

In the course of its briefing on the class certification motion, the City argued, among other things, that Kirola lacked standing to seek injunctive relief with respect to the alleged disability access claims at issue and therefore was not an adequate class representative. Dkt. 245, 20:7:14-21:2. At the motion hearing on May 18, 2010, the City withdrew its challenge to Kirola's adequacy as a class representative. Dkt. 285, 3:18-20. As such, in its June 7, 2010 Order Granting Plaintiffs' Motion for Class Certification, the Court did not address Kirola's standing, and, importantly, made "no finding as to the type or scope of relief [Kirola could] seek or obtain on behalf of the class[.]" Id., 4:21-22. Rather, the Court ruled that "[s]uch determinations [would] be made following trial based upon the evidence presented and the relief requested." Id., 4:23-24.

The parties presented their respective cases over the course of a five-week court trial. Cumulatively, thirty-six lay and expert witnesses, along with numerous exhibits in support of the parties' respective positions, were presented. Kirola testified, and presented the testimony of six class members and mothers of class members; several City employees as adverse witnesses; four accessibility experts; and two experts in other areas. The City presented testimony from members of the Mayor's Office on Disability ("MOD"), employees from various City departments, including the Department of Public Works ("DPW") and Recreation and Parks Department ("RecPark"); two accessibility experts; and several other individual witnesses.

Subsequent to trial, the Court directed the parties to meet and confer regarding the course of further proceedings, and to thereafter submit a Joint Statement Re Further Proceedings ("Joint Statement"). Dkt. 659, 1:22-26, 2:5-8. In the Joint Statement, Plaintiff alleges that she "had encountered, and was continuing to encounter on a daily, regular or ongoing basis, numerous disability access barriers that significantly limited, interfered with, and obstructed her access to the City's pedestrian rights of way, parks, pools and libraries in violation of the meaningful access standard." Dkt. 662, 10:9-13. She also claims to have "a real and immediate threat of repeated injury" stemming from eleven policies and procedures, identified as follows:

(1) the City's [2007-2008 Fiscal Year ("FY") Americans with Disabilities Act Transition Plan for Curb Ramps and Sidewalks ("Curb Ramp and Sidewalk Transition Plan") which does not comply with the three-year implementation period and 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;

(2) the Sidewalk Inspection Repair Program, which only inspects and repairs access barriers on a 25 year cycle, and which also fails to comply with the January 26, 1995 deadline for program access;

(3) the City's curb ramp design standard utilized between 1994 and 2004 pursuant to which it constructed curb ramps with a V inch lip at the base in violation of federal disability access design standards;

(4) the City's Guidelines for Paving and Accessibility Compliance which permits the City to install curb ramps up to two years after re-paving;

(5) the City's policy as stated on its website that an "accessible" park need provide only an "accessible entrance" and "at last one recreational opportunity," and which does not require the provision of accessible routes to the range of recreational opportunities provided within each park;

(6) the City's UPhAS [Uniform Physical Access Strategy], which adopts a policy of leaving disability access barriers that limit program access in place until major modernizations are performed in violation of the legal duty to remove such barriers by no later than January 26, 1995, which contains no objective definition of "accessible," and permits City officials to rely upon their "common sense" in determining what is "accessible," and which sets no deadline for when the City's parks and or libraries will be readily accessible to persons with mobility disabilities;

(7) the City's written complaint policies and forms that 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;

(8) the City's policies and procedures regarding new construction and alterations, which 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;

(9) the City's maintenance policies and procedures which do not set specific and prompt deadlines for the identification and repair of items that are broken, non-operational or in need of repair; . . .

(10) the City's failure to adopt and implement a self-evaluation and transition plan pursuant to California Government Code § 11135 . . . and

(11) the City's ongoing failure to adopt any written policy or procedure regarding the identification and removal of safety hazards to persons with mobility disabilities.

Dkt. 662, 13:15-11.²

^2. Aside from a brief reference to the adequacy of the City's transition plan, the FAC does not specifically reference any of the above policies. Dkt. 294, ¶ 44.