“[When] an injunction is asked which will adversely affect a public 18 interest … the court may in the public interest withhold relief until a final determination of 19 the rights of the parties, though some postponement may be burdensome to plaintiff.”
How later courts described this case
- “[When] an injunction is asked which will adversely affect a public 18 interest … the court may in the public interest withhold relief until a final determination of 19 the rights of the parties, though some postponement may be burdensome to plaintiff.”
- “[O]bstructed sidewalks exclude disabled persons from ordinary 14 communal life and force them to risk serious injury to undertake daily activities.”
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10 ALEX MONTOYA; REX SHIRLEY; Case No.: 19cv0054 JM(BGS)
PHILIP PRESSEL; and AARON
11
GRESSON, individually, and on behalf of ORDER ON MOTION FOR
12 all others similarly situated, PRELIMINARY INJUNCTION
13 Plaintiffs,
14 v.
15 CITY OF SAN DIEGO, a public entity;
and DOES 1-100,
16
Defendants.
17
18
19 On October 2, 2020 Plaintiffs filed a Motion for Preliminary Injunction against the
20 City of San Diego (the “City”) to enjoin the City from allowing pedestrian rights-of-way
21 to be obstructed by dockless vehicles in violation of the Americans with Disabilities Act
22 (“ADA”), the Rehabilitation Act, and California’s Disabled Persons Act (“DPA”). (Doc.
23 No. 106.) The motion has been fully briefed and the court finds it suitable for submission
24 on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1).
25 For the reasons set forth below, Plaintiffs’ motion is denied.
26 I. Background
27 On January 9, 2019, Plaintiffs filed a putative class action complaint asserting claims
28 for violations of the ADA, 42 U.S.C. § 12101 et seq., section 504 of the Rehabilitation Act,
1 29 U.S.C. § 794 et seq., California Civil Code section 51, et seq., (the “Unruh Act”),
2 California Civil Code section 54, et seq., (the “DPA”); California Government Code
3 section 4450, et seq., and California Government Code section 11135, et seq. (Doc. No. 1.)
4 On March 21, 2019, Plaintiffs filed the First Amended Class Action Complaint
5 (“FAC”). (Doc. No. 14.) The court issued a detailed order denying the City’s motion to
6 dismiss the FAC but granting the motions to dismiss brought by the private entities that
7 rent the dockless vehicles to third party individuals, which Plaintiffs categorized as the
8 “Dockless Vehicle Defendants.” (See Doc. No. 89.) Plaintiffs chose not to amend their
9 claims against the Dockless Vehicle Defendants.
10 Following a joint motion to amend, Plaintiffs filed the Second Amended Complaint
11 (“SAC”). (Doc. Nos. 95, 96, 97.)
12 The SAC alleges that Plaintiffs, who are individuals with disabilities, had found their
13 access to San Diego’s sidewalks diminished by the proliferation of dockless electric
14 vehicles currently in use in the City. (SAC ¶¶ 1, 2, 12, 13, 14, 15.) They allege that people
15 using the dockless electric vehicles either travel on the sidewalks or block paths of travel
16 because the vehicles are discarded in the middle of sidewalks or at other rights-of-way,
17 making it difficult for people with disabilities to safely traverse the pathways. (Id. at 2,
18 3.1) Further, the SAC alleges that as usage and abandonment of these vehicles and the
19 speed at which they travel increases, Plaintiffs are denied safe, equal, and full access to the
20 sidewalks. (Id. ¶¶ 20-29.) In Plaintiffs’ words, the vehicles’ “burgeoning proliferation and
21 uncurbed growth comes at the detriment of the rights of all disabled persons with mobility
22 and/or visual impairments who are residents and visitors of the City of San Diego, causing
23 Plaintiffs injury, severe anxiety, diminishing their comfort and discriminating against them
24 based on their disabilities….” (Id. at ¶ 30.) Plaintiffs direct allegations at the City
25 regarding its responsibilities as a municipality and the duty it has to maintain the sidewalks.
26
27
1 Document numbers and page references are to those assigned by CM/ECF for the docket
28
1 (See, e.g., id. at ¶¶ 31-34, 37, 41-42, 53, 55-61, 68-72, 76-79, 83, 87-91, 97-100, 107-108,
2 111.)
3 On May 8, 2020, the City filed its answer to the SAC. (Doc. No. 102.)
4 On October 1, 2020, Plaintiffs filed a motion for leave file a third amended
5 complaint. (Doc. No. 105.) The City opposed the motion, (Doc. No. 110) and the court
6 denied the request. (Doc. No. 132.)
7 On October 2, 2020, Plaintiffs filed the motion for preliminary injunction. (Doc.
8 No. 106.) The City filed its opposition2, (Doc. Nos. 126, 127) and Plaintiffs filed their
9 reply (Doc. No. 131).
10 II. Legal Standard
11 Injunctive relief may only be granted upon a showing of “irreparable injury and the
12 inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
13 See also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (The issuance of
14 a preliminary injunction is an “extraordinary remedy that may only be awarded upon a
15 clear showing that the plaintiff is entitled to such relief.”); Stanley v. Univ. of So. Calif., 13
16 F.3d 1313, 1320 (9th Cir. 1994). A plaintiff must show “that he faces a real or immediate
17 threat,” as opposed to a mere possibility, that he will suffer substantial or irreparable injury.
18 See, e.g., Midgett v. Tri-County Metro. Transp. Dist. Or., 254 F.3d 846, 850 (9th Cir. 2001).
19 Thus, “plaintiffs seeking a preliminary injunction face a difficult task in proving that they
20
21
22
2 Along with its opposition, the City asked the court to take judicial notice of: (1) Exhibit
23 A, San Diego Municipal Code sections 83.0301 et seq.; (2) Exhibit B, San Diego
Emergency Order, effective November 14, 2020; (3) Exhibit C, the contract between the
24
City of San Diego and Sweep, Inc.; and (4) Exhibit D, a Consumer Reports Article. (Doc.
25 No. 126-1.) The City makes the request pursuant to Federal Rule of Evidence 201.
Plaintiffs do not oppose the request. Having only consider Exhibits A and C in ruling on
26
the motion, the court takes judicial notice of these two exhibits and declines to take judicial
27 notice of Exhibits B & D. See Johnson v. DBTA, LLC 424 F. Supp. 3d 657, 662 (N.D. Cal.
2019) (“Public records maintained on government websites are generally subject to judicial
28
1 are entitled to this ‘extraordinary remedy.’” Earth Island Institute v. Carlton, 626 F.3d
2 462, 469 (9th Cir. 2010) (citing Winter, 129 S. Ct. at 376)).
3 Under the traditional standard, in order to obtain a preliminary injunction, the party
4 seeking relief must demonstrate: (1) that he is likely to succeed on the merits; (2) that he is
5 likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of
6 equities tips in his favor; and (4) that an injunction is in the public interest. Winter,
7 555 U.S. at 20. Courts within the Ninth Circuit can also apply a variant of this standard
8 known as the “sliding scale” which provides “if a plaintiff can only show that there are
9 ‘serious questions going to the merits’ – a lesser showing than likelihood of success on the
10 merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply
11 in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Alliance for the
12 Wild Rockies v. Pena, 865 F.3d 1211, at 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc.
13 v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013).
14 III. Discussion
15 Plaintiffs contend that a preliminary injunction against the City will protect
16 Plaintiffs’ physical safety and prevent the irreparable loss of dignity, independence, and
17 deprivation of Plaintiffs’ civil rights during the pendency of this action. They assert that
18 people with mobility and visual impairments are being disproportionately burdened and
19 their independence impeded by the City’s acquiescence in allowing the public sidewalks
20 to be turned into showrooms, rental stores, and store locations for the dockless vehicle
21 companies. Plaintiffs argue that “[d]ue to the ubiquitous presence of dockless vehicles,
22 people with mobility and visual impairments are denied equal access to and equal
23 enjoyment of the City’s system of sidewalks, cross walks, transit stops and other
24 walkways.” (Doc. No. 106-1 at 8.) In support of their request, Plaintiffs have provided
25 individual declarations (Docs. Nos. 106-3 – 106-6, 131-1 – 131-4) and have provided a
26
27
28
1 report by an accessibility expert, Mr. Jeff Mastin , (Doc. No. 106-2), who assessed the
2 dockless vehicle impact on the public system of sidewalks, transit stops, crosswalks, and
3 curb ramps. Attached to their reply brief is an additional declaration from Mr. Jonathan
4 Freeman, PhD, a founding member of Safe Walkways, a group that was formed by citizens
5 in 2018 in response to “the dangers created for pedestrians by dockless motorized scooters
6 and bikes made available for rent in San Diego.” (Doc. No .131-5 at ¶ 2.)
7 As to the relief being requested, without providing much in the way of specifics,
8 Plaintiffs conclude by asking the court to:
9 provide the relief that Plaintiffs need to meaningfully access public sidewalks
without encumbrance and without risk to their safety, so that they have the
10
same ability to independently and meaningfully enjoy the benefits of the
11 sidewalk as do those without disabilities. The Court should enjoin the City
from permitting dockless vehicles to be present on the sidewalk or other
12
pedestrian access ways in any fashion.”
13
14 (Doc. No. 160-1 at 34.) In essence, the Plaintiffs are asking the court for an order
15 prohibiting the City from permitting or authorizing dockless vehicles to be present on
16 public sidewalks, crosswalks, transit stops, and other pedestrian walkways, or access ways
17 anywhere within the City and under the City’s jurisdiction.
18 In opposition, the City counters that Plaintiffs’ failure to seek the injunction for over
19 two years belies their claims that they now need urgent judicial intervention to avoid
20 irreparable harm. (Doc. No. 126 at 9-11.) The City also contends that Plaintiffs have
21 neither demonstrated that they are likely to succeed on the merits nor that they will be
22 irreparably harmed. (Id. at 13-18.) The City also argues that granting Plaintiffs motion
23 will harm the public interest. (Id. at 11-13.) The City has also filed a declaration from an
24
25
26
3 While the court appreciates Mr. Mastin’s opinions on the subject, it should be noted that
27 he visited San Diego on March 7 – 10, 2019 and again on October 12-13, 2019. (Doc. No.
106-2 at ¶ 2.)
28
1 accessibility expert, (Doc. No. 127) and a declaration by a City of San Diego Investigator
2 (Doc. Nos. 127-1 – 127-6) in support of its opposition to Plaintiffs’ motion for preliminary
3 injunction.
4 (a) Delay Undercut Claims
5 The City argues that Plaintiffs’ long delay in bringing this motion “belies their claim
6 of irreparable harm and urgent need for judicial intervention.” (Doc. No. 126 at 9.)
7 Plaintiffs counter that their delay in filing for the injunction was justified, and that the delay
8 should not prevent the issuance of the injunction, especially in light of the fact that they
9 face “ongoing, cumulative harm.” (Doc. No. 131 at 5.)
10 While Plaintiffs attempt to downplay the delay, it is a fact the court must consider.
11 As the Ninth Circuit has explained: “[a]lthough, ‘delay by itself is not a determinative
12 factor in whether the grant of interim relief is just and proper,’ that the [plaintiff] tarried so
13 long before seeking this injunction is nonetheless relevant in determining whether relief is
14 truly necessary ... [because it] ‘implies a lack of urgency and irreparable harm.’” Miller
15 for & on behalf of NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993) (quoting
16 Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988) and
17 Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985)).
18 However, “tardiness is not particularly probative in the context of ongoing, worsening
19 injuries.” Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014).
20 Here, the original complaint was filed on January 9, 2019, with Plaintiffs not moving
21 for injunctive relief until October 2, 2020, 21 months after filing suit. Plaintiffs contend
22 they refrained from filing the injunction because they were in months long settlement
23 negotiations with the City. But those negotiations only began after the SAC was filed.
24 (See Doc. No. 129-1.) A review of the docket reveals that the SAC was filed on April 15,
25 2020, 15 months after the original complaint. As to the consideration given to the Deputy
26 City Attorney’s illness, this also occurred following the filing of the SAC. (See id.)
27 Therefore, the justifications propounded by Plaintiffs do not account for the 15-month
28 interval between when they initiated this lawsuit and began settlement negotiations.
1 Moreover, Plaintiffs have consistently alleged that the dockless vehicles have created
2 hazards on the sidewalks, crosswalks, transit stops and other walkways since the very
3 beginning. Thus, the harm they have been exposed to has been present since the outset.
4 The failure to seek injunctive relief is, therefore, probative, appears to have been a tactical
5 decision, and implies a lack of urgency that the court must consider. Accordingly, the court
6 finds this factor weighs against Plaintiffs.
7 (b) Immediate Irreparable Harm
8 Plaintiffs assert they will suffer irreparable harm in the absence of injunctive relief
9 because they are deprived of their ability to safely traverse the City’s sidewalks and that
10 they have been stripped of their dignity and independence due to their disabilities. (Doc.
11 No. 106-1 at 16-17.) Plaintiffs also point to the recent proliferation in the number of
12 dockless vehicles to support their claim that an injunction is necessary, arguing that this
13 uptick increases the chances that the sidewalks will once again become obstructed. In
14 opposition, the City argues that Plaintiffs have failed to demonstrate imminent, irreparable
15 harm. (Doc. No. 126 at 13.)
16 Plaintiffs seeking preliminary relief are required to demonstrate that irreparable
17 injury is likely in the absence of an injunction. Winter, 555 U.S. at 20. The Ninth Circuit
18 has elucidated that “[s]peculative injury does not constitute irreparable injury sufficient to
19 warrant granting a preliminary injunction. A plaintiff must do more than merely allege
20 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate
21 threatened injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac.
22 Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (quoting Caribbean Marine Servs. Co.,
23 Inc., v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)).
24 The parties have each submitted expert reports that contain countless photographs
25 of San Diego’s sidewalks. (See Doc. No. 106-2, 127 – 127-6). Plaintiffs’ expert has
26 submitted photographs depicting dockless scooters and bikes parked illegally, blocking
27 access on sidewalks and curb ramps, and individuals riding the scooters on sidewalks.
28 (Doc. Nos 106-2 at 72-127). Attached to the declarations of Plaintiffs Rex Shirley and
1 Philip Pressel are photographs documenting their experiences of traveling around the City
2 on mobility scooters and encountering instances where dockless vehicles blocking their
3 paths of travel and riders of scooters were on the sidewalks. (See Doc. Nos. 106-5 at 8-23,
4 131-1 at 3-8.) Similarly, Jonathan Freeman included numerous photographs along with
5 the declaration he filed in support of Plaintiff’s motion. (Doc. No. 131 at 131-5 at 23, 25,
6 27, 31, 33, 35, 37, 39, 41, 43, 45.) In opposition, Defendant has submitted photographs
7 depicting clear sidewalks, individuals with disabilities safely and easily traversing the
8 sidewalks, and dockless scooters left neatly in designated corrals. (Doc. Nos. 127 at 21-
9 27, 127-2 at 2-7, 127-3 at 2-7, 127-4 at 2-7, 127-5 at 2-7, 127-6 at 2-7.) In other words,
10 for every picture Plaintiffs have submitted in support of their claims, the City has countered
11 with one supporting its position. (Compare Doc. Nos 106-2 at 72-127, 106-5 at 8-23,131-
12 1 at 3-8, 131-5 at 23, 25, 27, 31, 33, 35, 37, 39, 41, 43, 45 with Doc. Nos. 127 at 21-27,
13 127-2 at 2-7, 127-3 at 2-7, 127-4 at 2-7, 127-5 at 2-7, 127-6 at 2-7.) The court is not
14 surprised by this conflicting evidence considering the fact that the dockless vehicles are
15 constantly moving objects and their presence in one location is not fixed.
16 The named Plaintiffs’ declarations detail specific encounters with dockless vehicles
17 and the users of them. (Doc. Nos. 106-3 – 106-6, 131-1 – 131-2.) While the court is
18 sympathetic to Plaintiffs, they have described several frustrating, isolated inconveniences
19 that have impeded their paths of travel. But all members of the general public are subjected
20 to the nuisance the presence of these dockless vehicles on sidewalks pose when ridden by
21 an individual disregarding the user instructions and the traffic laws or when carelessly
22 abandoned by the user - facts Plaintiffs themselves even acknowledge. (see Doc. No. 106-
23 1 at 16.) The City cannot guarantee that individuals with disabilities will not encounter
24 some impediments when they move around on the sidewalks. The realities of everyday
25 life mean that a “perfect” ADA accessible sidewalk does not exist in the constantly
26 changing variable that is city living. This is perhaps best illustrated when one considers
27 the use of bicycles and skateboards. There are countless signs posted on city streets
28 designed to prevent cyclists and skateboarders from riding on sidewalks, and bike riding
1 and skateboarding is prohibited in certain areas, yet individuals will choose to disregard or
2 ignore such signage. Likewise, people and businesses still place or abandon items on the
3 sidewalks that make it difficult for individuals with disabilities to move efficiently around
4 the city. All of these actions create transitory hazards for members of the public, and the
5 City relies on its regular enforcement efforts to control compliance. But it is not practicable
6 to expect that compliance can be achieved every second of every day.
7 Plaintiffs’ position also ignores the efforts the City has taken to address the influx of
8 dockless vehicles into San Diego. It has: (1) adopted two ordinances; (2) required rental
9 companies to obtain a permit before it can operate; and (3) entered into a contract with
10 Sweep, Inc., that authorizes Sweep to immediately impound any shared mobility device
11 that may impede disabled access to public rights-of-way. (See
12 https://www.sandiego.gov/sites/default/files/41 rfp 10089596-20-
13 b shared mobility device services - contract - final.pdf; Doc. No. 126-2 at ¶12;4) One
14 rental company, Bird, has also taken steps to educate riders with digital instructions and
15 animated illustrations on how to park the dockless vehicles to avoid obstructing pedestrian
16 rights-of-way, has educated riders on the ADA and city safety regulations and offered
17 incentives to riders to park dockless vehicles in designated corrals. (See generally Doc.
18 No. 126-3.) To be clear, the court is not suggesting that the City’s solution is perfect, it
19 simply illustrates that the City has been working toward finding a solution. This fact
20 mitigates against the court imposing the drastic relief requested by Plaintiff at this stage of
21 the proceedings. Accordingly, the court finds this factor weighs against Plaintiffs.
22 (c) Public Interest
23 Plaintiffs maintain that preventing discrimination against people with disabilities
24 serves to uphold the purpose of the ADA and that “[a] completely accessible walking city
25
26
27 4 The contract, entered into in October 2019, requires Sweep to perform its enforcement
duties 10 hours a day, 7 days a week. (Doc. No. 126-2 at ¶ 11.) The rental companies have
28
1 that is equally and fully accessible to every person with disabilities is assuredly in the
2 public interest.” (Doc. No. 106-1 at 19.) The City counters that issuing an injunction
3 would frustrate the will of San Diegans and the entire state of California. (Doc. No. 126 at
4 12.) The City also argues that enjoining it from enforcing the municipal code would not
5 resolve Plaintiffs’ complaints. (Id.)
6 A court considering a request for preliminary injunction must “weigh in its analysis
7 the public interest implicated by [an] injunction.” Arc of Cal757 F.3d at 991 (quoting
8 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)). “When the reach of an
9 injunction is narrow, limited only to the parties, and has no impact on non-parties, the
10 public interest will be ‘at most a neutral factor in the analysis rather than one that favor[s]
11 [granting or] denying the preliminary injunction.” Stormans, 586 F.3d at 1138-39. If,
12 however, the impact on an injunction reaches beyond the parties, carrying with it a potential
13 for public consequences, the public interest will be relevant to whether the district court
14 grants the preliminary injunction.” Id. at 39. See also Fund for Animals v. Lujan, 962 F.2d
15 1391, 1400 (9th Cir. 1992). (“In cases where the public interest is involved, the district
16 court must also examine whether the public interest favors the plaintiff.”); Weinburger,
17 456 U.S. at 312-13 (“[When] an injunction is asked which will adversely affect a public
18 interest … the court may in the public interest withhold relief until a final determination of
19 the rights of the parties, though some postponement may be burdensome to plaintiff.”).
20 Here, in asking the court to order that all dockless vehicles be removed from the City
21 limits while this lawsuit proceeds, Plaintiffs are asking for relief that goes beyond
22 maintaining the status quo, they are asking for the final relief requested in the SAC. The
23 overbreadth of this request is evidenced by the fact that it reaches non-parties and
24 implicates issues of broader public concern that could have public consequences.
25 Additionally, the California State legislature encourages the use of the dockless vehicles in
26 question and the people of San Diego have also spoken on the issue. The San Diego City
27 Council has enacted an ordinance allowing dockless vehicle companies to operate within
28 the San Diego City limits. Its purpose is to “establish a process for permitting the operators
1 [of dockless scooters] to achieve the City’s goals of encouraging alternate methods of
2 transportation while protecting public health and safety.” San Diego Municipal Code
3 §83.0301; see also CAL. VEH. CODE. § 21220. Similarly, California’s state legislature has
4 found that motorized scooters “produced no emissions, and therefore, do not contribute to
5 increased air pollution or increase traffic congestion… It is the intent of the Legislature in
6 adding this article to promote the use of alternative low-emission or no-emission
7 transportation.” CAL. VEH. CODE § 21220. Not only does the California Vehicle Code
8 authorize the use of motorized scooters, but the operating restrictions section states: “The
9 operator of a motorized scooter shall not do any of the following: … (i) Leave a motorized
10 scooter lying on its side on any sidewalk or park a motorized scooter on a sidewalk in any
11 other position, so that there is not an adequate path for pedestrian traffic.” Id. § 21235(i).
12 Under this provision, parking a dockless scooter on the sidewalk is, therefore, not
13 prohibited. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112, 1127 (9th
14 Cir. 2008) (“We are not sure on what basis a court could conclude that the public interest
15 is not served by an ordinance adopted in such a fashion. Perhaps it could so conclude if it
16 were obvious that the Ordinance was unconstitutional or preempted by a duly enacted
17 federal law, in which elected federal officials had balanced the public interest
18 differently…”). Accordingly, the court finds the public interest is not served by granting
19 the preliminary injunction and that this factor weighs against Plaintiffs.
20 (d) Balance of Equities
21 To obtain a preliminary injunction, a plaintiff must also demonstrate that ‘the
22 balance of equities tips in his favor.” Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir.
23 2017). Plaintiffs assert that the balance in equities tips in their favor. They take the position
24 that if the injunction is not granted, “people with disabilities who have mobility
25 impairments will be forced to choose between staying in their homes or risking physical
26 safety and mental anguish attempting to navigate the highway obstacle course that public
27 sidewalks have become. If the injunction is entered the only harm may be to the dockless
28 vehicles offerings being present on sidewalks throughout the City.” (Doc. No. 106-1 at
1 18.) Plaintiffs suggest that the City find other ways to display, park and store the dockless
2 vehicles than “private appropriation of the public sidewalks and rights-of-way.” (Id.)
3 If the injunction is not entered, Plaintiffs will not, as set forth above, suffer
4 irreparable harm, they will suffer potential inconveniences in the form of dockless vehicles
5 left intermittently on some of the sidewalks and crosswalks they traverse. Although the
6 parties do not specifically address the consequences to the City if the preliminary injunction
7 is granted it seems likely (1) the City will be revoking permits issued to the rental
8 companies and could potentially face lawsuits from the rental companies for the fees
9 associated with the permits and per device fee paid for each dockless vehicles. See San
10 Diego Municipal Code § 83.0302; (2) the City would need to end the contract it entered
11 with Sweep; and (3) the City would no longer allow this mode of transportation to be
12 offered to members of the public in violation of legislative policy favoring dockless
13 vehicles. Furthermore, in making their arguments, Plaintiffs ignore the measures the City
14 has already taken to combat the issues the presence of the dockless vehicles has created.
15 Accordingly, the court concludes that the balance of hardships does not tip in Plaintiffs
16 favor.
17 (e) Likelihood of Success on the Merits
18 Plaintiffs argue that the City has failed to fulfill its responsibilities under the ADA
19 and ensure that the sidewalks are maintained to allow meaningful pedestrian access for
20 those with mobility and visual impairments. (Doc. No. 106 at 19-32.) The City counters
21 that Plaintiffs have not met their burden of showing they have a strong likelihood or
22 reasonable certainty that they will prevail on the merits. (Doc. No. 126 at 14-18.)
23 Likelihood of success is the most important Winter factor. Garcia v. Google, Inc.,
24 786 F.3d 733, 740 (9th Cir. 2015); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014)
25 (“We begin with the first and most important factor: whether petitioners have established
26 a likelihood of success on the merits.”). A “district court should deny such relief ‘unless
27 the facts and law clearly favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d
28
1 1313, 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th
2 Cir. 1979)).
3 Title II of the ADA prohibits state and local governments from discriminating
4 against persons with disabilities. The relevant statutory language provides: “[N]o qualified
5 individual with a disability shall, by reason of such disability, be excluded from
6 participation or be denied the benefits of the services, programs, or activities of a public
7 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Title II
8 emphasizes ‘program access’ meaning that a public entity’s programs and services, viewed
9 in their entirety, must be equally accessible to disabled persons.” Cohen v. City of Culver
10 City, 754 F.3d 690, 694 (9th Cir. 2014) (citing Pierce v. Cnty. of Orange, 526 F.3d 1190,
11 1215-16, 1222 (9th Cir. 2008)). Similarly, section 504 of the Rehabilitation Act guarantees
12 meaningful access to, “participation in” and the “benefits of” any programs or activities
13 receiving federal financial assistance for qualified individuals. 29 U.S.C. § 794(a).
14 Alexander v. Choate, 469 U.S. 287, 301 (1985).
15 “This prohibition against discrimination is universally understood as a requirement
16 to provide ‘meaningful access.’” Lonberg v. City of Riverside, 571 F.3d 846, 851 (9th Cir.
17 2009). “An individual is excluded from participation in or denied the benefits of a public
18 program if ‘a public entity’s facilities are inaccessible to or unusable by individuals with
19 disabilities.’” Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 987 (9th Cir. 2014)
20 (quoting 28 C.F.R. § 35.149). The regulations implementing Title II of the ADA provide
21 that:
22 A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on
23
the basis of disability, unless the public entity can demonstrate that making
24 modifications would fundamentally alter the nature of the services, program,
or activity.
25
26 28 C.F.R. § 35.130(b)(7) (1993).
27 Courts have interpreted the scope of Title II to encompass anything a public entity
28 does. Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001). Indeed, the Ninth Circuit has
1 held that “maintaining public sidewalks is a normal function of a city and “without a doubt
2 something that the City does” and “maintaining their accessibility for individuals with
3 disabilities therefore falls within the scope of Title II.” Barden v. City of Sacramento, 292
4 F.3d 1073, 1076 (9th Cir. 2002)5. See also Frame v. City of Arlington, 657 F.3d 215, 225
5 -231 (the Fifth Circuit provides an in-depth discussion as to why a sidewalk is
6 unambiguously a service, program or activity of a public entity covered under Title II of
7 the ADA.) In so finding, the Barden court noted that “this broad construction of the phrase
8 ‘services, programs, or activities’ of a local government is supported by the plain language
9 of the Rehabilitation Act, … which defines ‘program or activity as ‘all of the operations
10 of’ a qualifying local government.” Barden, 292 F.3d. at 1076-77.
11 Here it is undisputed that Plaintiffs are qualified people with disabilities and are
12 entitled to use the City’s sidewalks, crosswalks, transit stops and other walkways. See
13 Cohen, 754 F.3d at 700 (“[O]bstructed sidewalks exclude disabled persons from ordinary
14 communal life and force them to risk serious injury to undertake daily activities.”). It
15 seems obvious to the court that the primary barrier to maintaining unobstructed sidewalks
16 is the dockless nature of the vehicles, and the level of control the City and the rental
17 companies have over how and where scooter riders leave the scooters after use. What is
18 not obvious, however, is whether the dockless vehicles can be considered architectural
19 barriers of the kind the ADA and its companion state statutes are meant to target.6
20
21
5 Even if public entities were not subject to applying the feature-specific requirements of
22
the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) to public rights
23 of-way, then they would “not suddenly find themselves free to ignore access concerns
when altering or building new rights-of-way, parks, and playgrounds. The requirements of
24
28 C.F.R. 35.151 would still apply, holding public entities to the ‘readily accessible [] and
25 usable’ standard.” Kirola v. City & Cnty. of S.F., 860 F.3d 1164, 1180 (9th Cir. 2017).
26
6 Assuming the dockless vehicles are architectural barriers, the court is mindful that Title
27 II of the ADA does not require States to fundamentally alter the nature of the services
provided, it requires only “reasonable modifications.” Tennessee v. Lane, 541 U.S. 509,
28
1 Moreover, the court is not convinced that Plaintiffs have demonstrated that they will
2 succeed in showing that they have been denied meaningful access to the City’s sidewalks
3 when it considers the 5,000 miles of sidewalk the City has to maintain in relation to the
4 number of Plaintiffs’ “documented obstructions.” Plaintiffs primarily rely on the report
5 submitted by Mr. Jeff Mastin, but the last time Mr. Mastin visited San Diego was in
6 October 2019, and much has changed since then. The court has addressed, supra,
7 Plaintiffs’ contention that the City’s system of sidewalks “comprised a literal obstacle
8 course.” (Doc. No. 106-1 at 32, 106-2 at ¶ 62.) The court has also raised its concerns
9 regarding Plaintiffs’ expectations and how the City cannot guarantee that individuals with
10 disabilities will not encounter some impediments when they move around on the sidewalks.
11 Finally, in addressing their likelihood of success on the merits, Plaintiffs reference
12 the “modest measures the City could have taken include mandating the use of docking
13 stations or expanding the use of corrals for the rental scooters and bikes or requiring
14 dockless companies to take affirmative steps to keep the sidewalks free of obstructions.”
15 (Doc. No. 106-1 at 24.) As mentioned above, the City has taken some such steps including
16 contracting with Sweep to immediately impound any dockless vehicle that may be
17 impeding disabled access to public rights-of-way. (See Doc. No. 126-2 at ¶12.) In other
18 words, by engaging in this contract, the City’s actions could be viewed as taking
19 affirmative steps to maintain the sidewalks and walkways in a condition that is accessible
20 to people with disabilities.
21 ///
22 ///
23 ///
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impose an undue financial or administrative burden, threaten historic preservation interests,
27 or effect a fundamental alteration in the nature of the service.” Id. (quoting 28 C.F.R.
§ 35.150(a)(2),( a)(3)).
28
On balance, Plaintiffs have failed to demonstrate the law and facts to favor their
2 || position or establish a likelihood of their success on the merits.’ Accordingly, this favor
3 || weighs against Plaintiffs.
4 IV. Conclusion
5 For the reasons set forth above, the Court DENIES Plaintiffs’ motion for
6 || preliminary injunction. (Doc. No. 106.)
7 IT IS SO ORDERED.
8 || Dated: March 19, 2021 Piel
10 n. Jeffrey. Miller
nited States District Judge
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26 Plaintiffs based the likelihood of success of their California Disabled Person’s Act Claim
27 || “CDPA”) on the success of their ADA claim. Having not demonstrated a substantial
28 likelihood of the ADA claim succeeding, the CDPA claim’s success has not been
adequately demonstrated. (Doc. No. 106-1 at 32.)