KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

IV. CONCLUSIONS OF LAW

A. LEGAL OVERVIEW

1. Claims

1. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. Under the ADA's implementing regulations, "no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." 28 C.F.R. § 35.149.

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

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

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

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

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

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

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

2. Standing

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

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

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

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

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

B. PRELIMINARY ISSUES

14. Before reaching the question of whether Kirola has Article III standing, the Court addresses four preliminary contentions concerning the constellation of evidence which may be considered in analyzing her standing: (1) whether standing may be established by evidence that was not presented at trial; (2) whether Kirola's experience with barriers in her neighborhood is sufficient to confer standing to sue for barriers she did not encounter; (3) whether standing may be established based on the experiences of class members; and (4) whether Kirola has standing to challenge the City's alleged "overarching policy" of discrimination.

1. Scope of the Evidence

15. The City contends that Kirola's standing is to be evaluated based solely on the evidence presented at trial; namely, her in-court testimony. In contrast, Kirola argues that the Court is not limited to the trial record, and that the Court should consider evidence obtained or produced during discovery—irrespective of whether such evidence was previously presented to the Court. For the reasons that follow, the Court finds that Kirola's standing is to be determined based on the trial record.

16. Standing is a core component of Article III's case or controversy requirement, and as such, it must be established "through all stages of federal proceedings." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. For instance, general factual allegations of injury resulting from a defendant's conduct may suffice at the pleading stage; but in response to a motion for summary judgment, a plaintiff cannot rely on "'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' . . . which for purposes of the summary judgment motion will be taken to be true." Id. (citing Fed. R. Civ. P. 56(e)). "At the final stage, those facts (if controverted) must be 'supported adequately by the evidence adduced at trial.'" Id. (citing Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)).

17. An assessment of standing based on the trial record is both permissible and appropriate, particularly where, as here, the plaintiff's standing is disputed. See Maine People's Alliance And Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006) ("When, as now, standing is reviewed after trial, the facts establishing standing 'must be supported adequately by the evidence adduced at trial.'") (citing Lujan, 504 U.S. at 561); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999) ("'[W]here standing is challenged as a factual matter, the plaintiff bears the burden of supporting the allegations necessary for standing with "competent proof." . . . "Competent proof" requires a showing by a preponderance of the evidence that standing exists.'") (citations omitted); Biopolymer Eng'g, Inc. v. Immudyne, Inc., No. 05-2972 (JNE/JJG), 2009 WL 2916847, *3 (D. Minn. Sept. 4, 2009) ("Plaintiffs bear the burden of establishing their standing. The Court will determine whether they have satisfied that burden based on the evidence received at trial."); see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) ("The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.").

18. Here, Kirola has long been on notice that the City disputes whether she has standing and that such determination would be adjudicated at trial. Although the City chose not to pursue the standing issue in connection with Plaintiff's class certification motion, the Court's order on that motion expressly stated that Kirola's standing "[would] be made following trial based upon the evidence presented and the relief requested." Dkt. 285, 3:23-24. Despite this awareness, Kirola offered only minimal testimony at trial to establish that she suffered an injury in fact. Specifically, Class Counsel only elicited testimony from Kirola regarding: (1) three stretches of sidewalk containing "bumps"; (2) one corner that lacked curb ramps; (3) one corner that provided only a single curb ramp; (4) errant step stools at three of the City's libraries; (5) three inaccessible pools; and (6) steep paths at one park. RT 1384:13-21, 1382:4-18, 1387:2-4, 1385:3-1386:8, 1386:15-19, 1388:5-7.

19. Apparently recognizing the insufficiency of her trial testimony, Kirola now argues in her post-trial briefing that the Court must also consider evidence that was not presented at trial. Dkt. 672, 13:22-14:3, 17:16-18:4, 18:15-26, 19:12-25. More specifically, Kirola points to certain portions of her deposition testimony and the declaration she submitted in support of her motion for class certification to establish that she encountered barriers in addition to those to which she testified at trial. Kirola's post hoc effort to supplement the trial record is unavailing. The Supreme Court has made it clear that when standing is disputed at "the final stage" of a case, standing must be established by "evidence adduced at trial ." See Lujan, 504 U.S. at 561; Maine People's Alliance, 471 F.3d at 283; Perry, 186 F.3d at 829.

20. Limiting the evidence of Kirola's standing to the trial record is necessary and appropriate as a matter of due process. Both Kirola's deposition testimony and her declaration constitute inadmissible hearsay. Fed. R. Evid. 801(c); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779 (9th Cir. 2002) ("Deposition testimony, irrespective of its contents, is ordinarily hearsay when submitted at trial"); but see Fed. R. Civ. P. 32(a)(4) (providing an exception to the hearsay rule for deposition testimony where the witness is unavailable). Namely, both documents consist of out-of-court statements offered to establish the truth of the matter asserted—to wit, that Kirola did, in fact, encounter access barriers as described and consequently suffered an injury in fact. Kirola has not shown that these statements are subject to any hearsay exception, and otherwise provides no authority suggesting that it would be fair or appropriate for the Court to consider her out-of-court statements, which were not subject to cross-examination by the City at trial.¹² 

21. In sum, the Court finds that Kirola's standing must be evaluated based on the trial record. Consequently, Kirola cannot rely on her deposition testimony or statements presented in a declaration previously filed in support of her class certification motion to bolster the trial record for the purpose of establishing her standing. See Lujan, 504 U.S. at 561; cf. Simon v. Shearson Lehman Bros., 895 F.2d 1304, 1323 (11th Cir. 1990) (when a party chooses not to present evidence at trial for strategic or tactical reasons, it is not an abuse of discretion to deny the party's request to re-open the record before entry of judgment).

^12. The vast majority of the deposition testimony Kirola now wishes the Court to consider was never previously presented to the Court. Although the first volume of Kirola's deposition was submitted to the Court in connection with the motion for class certification, the second volume of her deposition, as Class Counsel now admits, was never previously provided to the Court. Dkt. 673, 1:13-17; see also Dkt. 189-2, Exh. 15. All but one alleged access barrier which Kirola now wishes the Court to consider was discussed in the second volume. Dkt. 673.

2. Neighborhood Access

22. Kirola avers that she suffered an actual injury as a result of encountering access barriers in and around her neighborhood. While recognizing that accessible programs, services and facilities may be available elsewhere in the City, Kirola contends that the City is obligated to ensure that its programs and services are accessible on a neighborhood basis. E.g., Dkt. 604, 20:8-9, 25:2-4. By extension, Kirola contends that she has standing to sue for access barriers in other areas of San Francisco that she did not actually encounter.

23. As support for her position, Kirola relies principally on Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 943 (9th Cir. 2011) (en banc) ("Chapman I"). In that case, a mobility-impaired individual brought an individual Title III public accommodations action against a retailer, Pier 1, claiming that he encountered barriers at a particular location of a national retailer that impeded his access. The court held that when a plaintiff "has suffered an injury in fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability," he has standing to sue for injunctive relief, "either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility." Chapman I, 631 F.3d at 944. Additionally, the court held that "an ADA plaintiff who establishes standing as to encountered barriers may also sue for injunctive relief as to unencountered barriers related to his disability." Id.

24. Kirola argues that like the plaintiff in Chapman I, it is unnecessary for purposes of standing that she actually encountered the barriers which she seeks to address, and that standing may be established based solely on her experience with facilities in her neighborhood. Chapman I, however, is distinguishable in at least two critical respects. First, Chapman I was an individual lawsuit and thus did not address the standards for evaluating standing in a class action. Second, the claims in Chapman I were premised on Title III of the ADA, as opposed to Title II, which does not require that each individual site at which a public service is offered be accessible, so long as the program, activity or service, "when viewed in its entirety," is readily accessible. See 28 C.F.R. § 35.150(a) & (a)(1) ("This paragraph does not . . . [n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities."). "In contrast, Title III of the ADA, which governs places of public accommodation, imposes more stringent requirements aimed at ensuring that every facility is equally accessible to disabled persons." Cohen, 754 F.3d at 695 n.4 (citing Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 882 (9th Cir. 2004)) (emphasis added); see also Cary LaCheen, Using Title II of the Americans with Disability Act on Behalf of Clients in TANF Programs, 8 GEO.J. ON POVERTY L. & POL'Y 1, 119-20 (2001) ("Given . . . the fact that the unit of analysis for determining accessibility is different under Title II and Title III, Title III will often be a more stringent access standard for a particular program site than Title II.").¹³ 

25. Because the proper unit of analysis under Title II of the ADA is programs and services —not the individual sites at which they are offered—it is possible for a program, when viewed in its entirety, to be in compliance with the ADA, even if some aspects of facilities where the programs are offered are inaccessible. E.g., Daubert, 760 F.3d at 987-988 (holding that the mere fact that some of the bleachers in the football stadium were not accessible did not result in the denial of program access to the school district's football program); Bird v. Lewis & Clark College, 303 F.3d 1015, 1022 (9th Cir. 2002) ("Accessibility is not location-dependent; rather, as we have explained, the essential inquiry is whether the program overall is accessible"). Accordingly, a Title II plaintiff cannot establish standing by merely pointing to a few isolated access barriers in her neighborhood. Rather, to establish standing, a Title II plaintiff must show that the barriers she encountered amounted to a wholesale denial of "meaningful access" to the challenged program, service, or activity, when viewed in its entirety. See Armstrong, 275 F.3d at 861 (citing Alexander v. Choate, 469 U.S. 287, 295 (1985)).

26. The two out-of-circuit district court cases cited by Kirola are likewise unavailling. See Kerrigan v. Philadelphia Bd. of Elections, No. 07-687, 2008 WL 3562521, *17-18 (E.D. Pa. 2008); Westchester Disabled on the Move, Inc. v. Cnty. of Westchester, 346 F. Supp. 2d 473, 478 (S.D.N.Y. 2004). Both of those cases involved the provision of accessible polling places on a neighborhood basis, and presented issues including the threat of voter disenfranchisement and the fact that registered voters are specifically assigned to polling places near their registered addresses so as to encourage and facilitate voting. See, e.g., Kerrigan, 2008 WL 3562521, *1 (noting that the Philadelphia Board of Elections and the Commissioners of the City of Philadelphia "assign each registered voter to a specific division near his or her home" and estimating there to be between 1,000 and 1,200 polling places in the City of Philadelphia). The issues relating to the location of polling places and whether voters have access to a public entity's "program of voting" are separate and distinct from whether disabled persons have program access to the City's facilities and public right-of-way. Accordingly, the Court finds these cases to be inapposite.

27. In sum, the Court finds no merit to Kirola's contention that she need only establish that she encountered barriers within her neighborhood in order to have standing to seek injunctive relief with respect to the City's programs, services and activities at issue. She must instead prove that she was denied access to the foregoing in their entirety.¹⁴

^13. In addition, unlike Title III, ADA Title II regulations also allow public entities to utilize a variety of methods to render existing facilities "readily accessible," including the "reassignment of services to accessible buildings" and the "delivery of services at alternate accessible sites," among others. 28 C.F.R. § 35.150(b); see also Tenn. v. Lane, 541 U.S. 509, 511 (2004) ("Title II does not require States to employ any and all means to make . . . services accessible or to compromise essential eligibility criteria for public programs. It requires only 'reasonable modifications' that would not fundamentally alter the nature of the service provided, and only when the individual seeking modifications is otherwise eligible for the service.").

^14. Furthermore, as set forth above, the Court finds that the testimony proffered by Kirola's experts in support of Kirola's neighborhood theory lacks credibility. Not only do such experts' conclusions conflict with the law, they are unsupported by any discussion of professional or industry understandings of Title II's program access requirements.

3. Testimony of Class Members

28. Kirola argues that she may satisfy her burden of demonstrating standing based on the experiences of persons other than herself; to wit, class members. Dkt. 672, 13:22-14:3. This contention also lacks merit. "[I]n class actions, the named representatives must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Pence v. Andrus, 586 F.2d 733, 736-37 (9th Cir. 1978) (internal citations omitted); see also Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972) (holding that "the 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured."). As such, "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea, 414 U.S. at 494; Cornett v. Donovan, 51 F.3d 894, 897 n.2*6767(9th Cir. 1995) ("if the representative parties do not have standing, the class does not have standing.").

29. Kirola cites Armstrong for the proposition that the experiences of other class members may be considered in assessing whether she has standing. Dkt. 672, 13:28. In Armstrong, a class of disabled prisoners and parolees brought a class action alleging that policies and practices related to parole and parole revocation hearings violated the ADA. 275 F.3d at 854-55. The Ninth Circuit held that when prospective injunctive relief is sought, the plaintiff must show not only that he suffered an actual injury, but also that he is "realistically threatened" with a repetition of the violation which led to that injury. Id. at 861-62. A likelihood of recurrence may be shown where the injury stems from a written policy or the harm is part of a pattern of officially sanctioned conduct. Id. at 861. In discussing the latter theory of recurrence, the court explained that "[w]hen a named plaintiff asserts injuries that have been inflicted upon a class of plaintiffs, [the court] may consider those injuries in the context of the harm asserted by the class as a whole, to determine whether a credible threat that the named plaintiff's injury will recur has been established." Id.

30. Kirola's analysis of Armstrong mixes apples with oranges. Armstrong discusses two separate components to standing: First, the named plaintiff's actual injury ; and second, the realistic threat of repetition, i.e., whether the plaintiff's injury is likely to recur, which applies where injunctive relief is sought. Id. at 860-61. The court found that in connection with the latter, injuries suffered by class members may be pertinent. Id. at 861. Significantly, nowhere in its opinion did the Armstrong court state that the threshold inquiry of whether the named plaintiff suffered an injury in fact may be analyzed based on evidence of harm sustained by the class. Armstrong thus provides no support for Kirola's claim that the Court must consider the experiences of class members in determining whether the named plaintiff suffered an actual injury. The Court therefore declines to consider the testimony of other class members in assessing whether Kirola satisfied her burden of establishing that she "personally" has been injured as a result of the policies and practices at issue in this case. See Pence, 586 F.2d at 736-37 (holding that a named class representative's standing must be based on the injury he sustained, as opposed to those suffered by class members).

4. "Overarching Policy"

38. Finally, Kirola argues that she need not demonstrate her standing to challenge each of the eleven policies and procedures she identified in post-trial briefing. Rather, Kirola now asserts that the City has an "overarching policy of leaving disability access barriers in place," and that she has standing to challenge this "official" policy. Dkt. 672, 1:16-28, 5:6-20:4, 25:18-19. She denies that this is a newly-asserted theory of liability, and claims that the Court characterized the case in this manner in its order granting her motion for class certification. Dkt. 681, 2:24-3:4.

39. As an initial matter, Kirola's contention directly contradicts her prior representation to the Court that she is specifically challenging the eleven policies and practices identified in her prior post-trial briefing. Dkt. 662, 13:12-14:17. That aside, Kirola's "overarching policy" argument makes no sense. The mere fact that an access barrier is left "in place" does not automatically demonstrate a violation of Title II of the ADA. Title II emphasizes "program access," which entails reviewing the program or service in its entirety, as opposed to whether every element of a facility through which a program or service is presented is fully accessible. See Daubert, 760 F.3d at 986. Consequently, a barrier may be left in place without necessarily violating Title II.

40. Kirola cites Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008), for the proposition that this Court, in determining standing, must look at the "case as a whole, rather than picking apart its various components to separate the claims for which the plaintiff will be entitled to relief from those for which he will not." Dkt. 672, 3:9-12. Arreola involved an interlocutory review of a class certification order, and as such, the court focused on the allegations in the plaintiff's complaint to determine if he had satisfied his burden to establish standing at the pleading stage. 546 F.3d at 795. Arreola is inapposite, where, as here, the issue of standing is being evaluated based on evidence presented at trial. See Lujan, 504 U.S. at 561.

41. Irrespective of whether Kirola frames her challenge as one to an "overarching" policy or to eleven specific policies and practices, Kirola lacks standing in either instance. As will be established in the sections that follow, Kirola has not shown that she has suffered an injury in fact resulting from any access barrier she testified to having encountered. Having failed to make this showing, she cannot, by extension, demonstrate any injury resulting from any allegedly impermissible policy or practice.

5. Summary

42. Kirola must demonstrate that she has standing based upon her personal experience as set forth in her trial testimony, and not upon the experiences of class members or any extra record evidence. In addition, Kirola must establish that she was personally denied meaningful access to the challenged programs, services and activities in their entirety, as opposed to specific facilities. The Court now addresses whether Kirola has met her burden of establish standing within the meaning of Article III.

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.

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.