Ron Sarfaty v. City of Los Angeles

9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

I WESTERN DIVISION

RON SARFATY CASE NO. 2:17-cv-03594-SVW-KS

13 Plaintiffs,

4 “ FINDING OF FACT AND

| CITY OF LOS ANGELES CONCLUSIONS OF LAW

16 Defendant.

17

18 | INTRODUCTION

19 On July 22, 2020 and July 23, 2020, the Court held a bench trial in this action to

20 determine whether Defendant the City of Los Angeles (“the City”) violated Title II

of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seg. (the “ADA” or

~ “Title II”), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”),

. and California Government Code § 11135. In advance of trial, Plaintiff Ron

55 Sarfaty (“Plaintiff”) and the City submitted declarations containing their

% witnesses’ direct testimony, as required by the Court’s Standing Order for non-jury

7 trials. The parties presented their witnesses at trial, at which time the Court

28 engaged in its own questioning of each witnesses and allowed subsequent cross-

examination and re-direct questioning by the parties. Having carefully reviewed

and considered the evidence presented at trial, the Court issues the following

| findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure

2 52(a).

4 For all findings of fact set forth below, in making any credibility determinations

° regarding witness testimony, the Court has considered, among other things, the

° manner in which the witnesses testified, their interest in the outcome of the case,

and the reasonableness of their testimony in light of all of the evidence. The Court

9 has also considered the relevant factors in Section 1.14 of the Manual of Model

10 Civil Jury Instructions for the District Courts of the Ninth Circuit (2017 Edition),

| located at http://www3.ce9.uscourts.gov/jury-

12 instructions/sites/default/files/WPD/Civil_Instructions 2018 9 0.pdf

13

4 FINDINGS OF FACT

15 1. Plaintiff is unable to walk or stand independently as the result of a stroke.

16 He uses a wheelchair for mobility and a modified van equipped with a

17 power lift for transportation. Dkt. 87 at 2. At the time of the events that

18 precipitated this litigation, he used a side-deploying wheelchair lift that

19 deployed out of the passenger side of his van. /d. Currently, Plaintiff uses a

20 rear-deploying lift on his new modified van. On occasion he travels in his

friend’s van and uses a portable ramp that lets him enter and exit through

~ the passenger side of the vehicle. Jd.

24

35 2. In April 2015, the City altered its on-street public parking on Reseda

6 Boulevard as part of the City’s “Great Streets Initiative.” Plaintiff Trial Ex.

7 7 at 3, 13. The alterations included the installation of cycletracks and buffer

28 zones containing bollards, and the restriping/relocation of parking spaces

away from the curb. /d.; see also City Trial Ex. 4, 5, 6.

| 3. The alteration to this portion of Reseda Boulevard was undertaken based

2 on the elevated rate of serious and fatal accidents that had occurred on this

3 stretch of Reseda. Dkt. 84 at 3; Dkt. 84-5 at 2-3. The Great Streets Project

4 as a whole was implemented to protect the public and increase safety on

° the City’s streets. Dkt. 84 at 1-2. The City asserts that one of the goals of

° the Great Streets Project was to “improve access and mobility” and that the

alterations to Reseda Boulevard involved accessibility review. Id. at 2-3.

9 No portion of the information packet describing the Reseda Boulevard

10 project to residents discusses accessibility, references disabled individuals,

| or depicts wheelchair use. See generally City Trial Ex. 5. A recurring

12 graphic in the informational packet distinguishes between the separated

13 bike lane, with the phrase “BIKE” below it, and the sidewalk, with the

14 phrase “WALK” below it. Id.

15

I 4. During the course of the alteration, the City conducted community

evaluations and engaged in accessibility tests, including utilizing lifts,

ramps and other mobility devices used by disabled persons on the altered

0 portions of Reseda Boulevard. Dkt. 84-5 at 3-4. Individuals reported to

City personnel involved with the project that side vehicle lifts used by

? disabled individuals could not longer be directly deployed onto the

23 sidewalk. Id. at 4.

24

25 5. The altered on-street parking provides 73 public parking spaces dispersed

26 over ten block faces. Plaintiff's Ex. 7 at 13. None of the altered parking

“7 spaces are marked or identified as reserved for use by individuals with

“8 disabilities or are directly adjacent to an accessible route to reach the

sidewalk.

| 6. There is a signaled, mid-block crosswalk on the altered portion of Reseda

2 between Rayen and Nordhoff streets that has curb ramps on each end. The

3 rest of the altered portion of Reseda contains no mid-block curb ramps,

4 only active and abandoned vehicular driveways. All but one of these

° driveways present slopes exceeding 8.33%. Dkt. 89 at 2; Dkt. 85 at 7-8,

Plaintiff Trial Ex. 7 at 14.

9 7. Given the position of the mid-block curb ramp approximately halfway

10 between Rayen and Nordhoff, this means that in most cases (with the

1 exception of the shorter distance between Rayen and Gresham, which is

12 only 356 feet), there are roughly 200 yards between accessible intersections

13 on the altered portion of Reseda Boulevard. See City Trial Ex. 4. The

14 parking spaces on the altered portion of Reseda Boulevard are not evenly

1D distributed, and in some cases cluster near the intersections, and in other

I cases are clustered near the middle of the block because of the existence of

buffer zones near intersections that restrict parking. Id.

19

0 8. Before April 2015, Plaintiff frequented businesses on Reseda Boulevard

including Falafel Palace and Njoy Games and Comics a few times a month.

? On these occasions, Plaintiff would park his van curbside on Reseda and

23 exit directly onto the sidewalk using his side-deploying wheelchair lift and

24 proceed to his intended destination via the sidewalk.

25

26 9. After the 2015 alterations to the on-street parking on Reseda Boulevard.

“7 Plaintiff could no longer park curbside and exit his vehicle directly on to

“8 the sidewalk. Plaintiff had to deploy his lift into the active bike lane and

travel extended distances in the active bike lane to get to the nearest

| intersection with a curb ramp. Plaintiff was almost hit by a screaming

2 bicyclist while traveling in the bike lane, making him anxious and

3 uncomfortable and causing him to experience difficulty, distress and

4 embarrassment. Plaintiff could not ride continuously in the buffer zone

° between the parking space and the bike lane because there were bollards

° placed there. Dkt. 87 at 3.

9 10. On August 25, 2015, Plaintiff again visited Reseda Boulevard and

10 encountered the same problems with the on-street parking spaces described

1 above. Plaintiff testified that he has substantially curtailed his visits to

12 establishments in this area of Reseda Boulevard on the basis of these

13 experiences. The Court found Plaintiffs testimony on his prior experiences

14 to be credible throughout the trial.

15

I 11. Plaintiff wrote letters to the City’s Department of Street Maintenance’ on

April 6, 2015, August 25, 2015, and January 6, 2016. These letters are

essentially identical and indicate that he was unable to use his van to

0 offload onto the sidewalk, and instead was forced to roll “nearly 100 yards”

to reach a lowered curb. He suggests that the alterations must have been

? “designed by a moron with no sensitivity whatsoever to disabled or

23 handicapped persons.” He requests “an ETA when the streets will be

24 brought back to the safe way it was configured before this silliness” at the

25 end of each letter. See Plaintiff Trial Ex. 11, 12, 13. None of Plaintiffs

76 letters request additional accessible parking on the altered portion of

“7 Reseda Boulevard. Plaintiff never attempted to call the Department of

“8 Street Maintenance, and never received a response to his letters.

' Plaintiffs direct testimony declaration alternatively refers to the Department of Street Maintenance as the

“Department of Street Services.” Dkt. 87 at 4. Each letter is addressed to the Department of Street Maintenance.

Plaintiff Trial Ex. 11, 12, 13.

2 12. Multiple City employees submitted unrebutted direct testimony

3 declarations that no records exist of any complaints made by Plaintiff. Dkt.

4 84-2 at 3; Dkt. 84-4 at 2. There is no evidence in the record or testimony

° that suggests that the Department of Street Maintenance has any

° responsibility for accessibility issues with regard to the City’s on-street

parking. Angela Kaufman (“Kaufman”), previously an ADA compliance

9 officer for the City during the relevant time period, testified that while

10 ADA complaints recetved by other departments should (as a general

1 policy) be forwarded to the City’s Department of Disability (“DOD”) to

12 determine whether accommodations can be made, in practice this does not

13 necessarily occur.

14

IS 13. Plaintiff and Kaufman had a phone call in September 2016, after Plaintiffs

I Counsel instructed him to both call and write to her. Plaintiff expressed his

displeasure with the cycletracks, asked that they be removed, and

expressed his belief that the ADA required the City to do so. Kaufman has

0 a limited recollection of the phone call, and testified that she informed him

that the City would not remove the cycletracks, and that it did not believe

? that the ADA required additional alterations to the cycletracks on Reseda

23 Boulevard. Kaufman also provided Plaintiff with contact information for

24 the Federal Highway Administration (“FHA”) and suggested he contact

25 them regarding his cycletrack complaint. Plaintiff later filed this lawsuit.

26

27

28

| CONCLUSIONS OF LAW

3 1. The Court reaffirms its conclusions made on the record on July 22, 2020

4 before the beginning of the bench trial that Plaintiffs claims are not moot

° because he has purchased a new rear-unloading handicapped van to replace

° the side-unloading handicapped van he used at the time he filed this

lawsuit. Plaintiff remains a disabled individual, the on-street parking on the

9 altered portion of Reseda Boulevard remains in the same configuration, and

10 a determination that it violates the ADA may still lead to injunctive relief

1 that will benefit Plaintiff. See Rosebrock v. Mathis, 745 F.3d 963, 971 (9th

12 Cir. 2014) (“A case becomes moot—and therefore no longer a ‘Case’ or

13 ‘Controversy’ for purposes of Article I]]—‘when the issues presented are

14 no longer “live” or the parties lack a legally cognizable interest in the

IS outcome.’”’)

16

17

2. The Court also incorporates by references its prior Orders, to the extent that

they held that the settlement reached in Willits v. City of Los Angeles, No.

0 10-05782-CBM-MRW (C.D. Cal. Aug. 25, 2016) (the “Willits settlement”)

does not preclude Plaintiffs claims. See Dkt. 38 at 5-8; Dkt. 74 at 6-8. As

? previously stated “[t]he Court concludes both that (1) the express language

23 of the Willits settlement does not preclude Plaintiff's claims, and (2) that

24 even if it did, the ‘identical factual predicate’ test would prevent the Willits

25 settlement from releasing these claims, because they are based on

76 accessibility issues arising from alteration of the City’s on-street parking

“7 facilities, rather than accessing or travelling on the City’s pedestrian

facilities.” Dkt. 74 at 8.

| 3. The Court also reincorporates the relevant facts that are not disputed by the

2 parties and were addressed in the Court’s prior Order— “that the City is a

3 ‘public entity’ for the purposes of Title II of the ADA, that Plaintiff Sarfaty

4 is a disabled person for the purposes of the ADA, [and] that on-street

° public parking falls within the category of a ‘service, program or activity’

° for the purposes of Title II of the ADA. See e.g., Fortyune v. City of

Lomita, 766 F.3d 1098 (9th Cir. 2014).” Dkt. 74 at 3 n.4.

10 4. In Fortyune, the Ninth Circuit expressly held that both 28 C.F.R. § 35.150

| and 28 C.F.R. § 35.151 require on-street parking provided by a public

12 entity like the City be accessible. In particular, the Ninth Circuit stated that

13 28 C.F.R. § 35.151(b)(1) “require[s] that all public on-street parking

I4 facilities constructed or altered after the ADA's effective date be

IS accessible.” 766 F.3d at 1103.

16

17

5. 28 C.F.R § 35.151(b)(1) states that: “Each facility or part of a facility

altered by, on behalf of, or for the use of a public entity in a manner

2) that affects or could affect the usability of the facility or part of the

>| facility shall, to the maximum extent feasible, be altered in such manner

? that the altered portion of the facility is readily accessible to and usable

23 by individuals with disabilities, if the alteration was commenced after

24 January 26, 1992.” Id. (emphasis added). There is no dispute that the

25 alteration of Reseda Boulevard was completed in April 2015.

26

27

28

| 6. The Court previously concluded that the installation of cycletracks and

2 movement of the preexisting parking spaces away from the curb on this

3 stretch of Reseda Boulevard constituted an alteration for purposes of 28

4 C.F.R. § 35.151(b)(1), and that therefore the City’s on-street parking on

° this portion of Reseda must “to the maximum extent feasible . . . [be]

° readily accessible to and usable by individuals with disabilities. . . “ Dkt.

‘ 74 at 4-6.

10 7. No technical specifications for on-street parking exist under the relevant

| ADA standards. See 2010 ADA Standards for Accessible Design available

12 at

13 https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pd

I4 f; see also 28 C.F.R. § 35.151(c)(3) (alterations after March 15, 2012 must

IS comply with the 2010 ADA Standards). However, in Fortyune Ninth

I Circuit held that Auer deference to the opinion of the Department of Justice

(“DOJ”) with regard to proper interpretation of § 35.151(b)(1). Fortyune,

766 F.3d at 1104. In an amicus brief filed in Fortyune, the DOJ stated that

0 (1) in the absence of technical specifications, Title II’s program

accessibility standards (expressly referencing § 35.150(a) and §

2? 35.151(a)(1) and (b)(1)) apply to a public entities’ on-street parking, and

23 (2) public entities “have a degree of flexibility” in achieving the program

24 accessibility requirements embodied in § 35.150 and § 35.151, and that

25 technical specifications for similar structures (like the accessible spaces for

26 parking lots addressed in the 2010 ADA Standards) provide a “template”

“7 for public entities to “apply and to modify as needed to achieve

28

| accessibility of [their] on-street parking.” See Dkt. 44-7 at 7-8 (DOJ amicus

2 brief in Fortyune).

4 8. The Court does not find in these circumstances that reference to the

° technical specifications in the 2010 ADA Standards is helpful in

° determining whether Plaintiff has established a violation of the ADA.

While it is clear from the exhibits presented at trial that none of the on-

9 street parking spaces on Reseda Boulevard meet the technical

10 specifications for accessible parking in the 2010 ADA Standards (because

1 no designated accessible parking is provided), the accessibility challenges

12 Plaintiff testified that he encountered during his use of these on-street

13 parking spaces do not specifically relate to any of the technical

I4 requirements in the 2010 ADA Standards. Instead, the challenges he

IS describes arises solely from the broader layout of on-street parking on

I Reseda, and the distance between the parking spaces and the sidewalk.

Because the Court interprets the 2010 ADA Standards as “guidance” for

meeting the general program accessibility requirements embodied by §

0 350.150 or § 350.151 with regard to on-street parking, finding an ADA

violation based solely on the basis of a failure to apply those technical

? requirements by rote would not be appropriate here.

23

24 9. Accordingly, the Court finds that broader program accessibility standard

25 embodied in § 35.151(b)(1), which requires that the altered portion of

76 Reseda Boulevard be “readily accessible” to individuals with disabilities is

“7 the proper lens through which to evaluate Plaintiffs claims. See, e.g.

28

10

| Kirola v. City & Cty. of San Francisco, 860 F.3d 1164, 1182 (9th Cir.

2 2017) (affirming district court analysis of program accessibility under

3 lower standard applicable via § 35.150(a)). The City’s argument that

4 “readily accessible” in the on-street parking context requires only

° compliance with § 35.151(i)’s requirement that accessible curb ramps exist

° at each intersection is not consistent with the Ninth Circuit’s precedent in

Fortyune and Kirola, each of which clearly articulate a broader approach to

9 program accessibility. See Kirola, 860 F.3d at 1180-81 (finding that if the

10 relevant technical specifications relevant in that case did not apply, §

| 35.151 would still require the Court to analyze that “general standard” to

12 determine public entity ADA compliance); Fortyune, 766 F.3d at 1103

13 (describing § 35.151(b)(1) as creating a “general mandate of

14 accessibility”).

15

I 10. The Court begins its analysis under this standard by noting two facts it

finds to be undisputed on this evidentiary record. First, on-street parking

cannot properly be considered “accessible” without consideration of how

0 disabled individuals reach the sidewalk from a parking space, because a

parking space is useful only to the extent it permits individuals to reach

? businesses and other establishments that are connected to on-street parking

23 by a public sidewalk. Turning to the 2010 ADA Standards for guidance on

24 this issue, the Court notes that Section 502.3 of the 2010 ADA Standards

25 expressly requires that “Access aisles shall adjoin an accessible route.”

26 2010 ADA Standards for Accessible Design, available at

“7 https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pd

28

11

| f. Similarly, Section 208.3.1 requires that accessible parking spaces be

2 located on the “shortest accessible route” from parking to an entrance. Jd.

3 Based on this guidance, the Court concludes that whether the on-street

4 parking along the altered portion of Reseda Boulevard is “readily

° accessible” depends (in part) on whether individuals like Plaintiff may park

° their vehicles in those spaces and successfully reach the sidewalk in order

to reach their final destination.

10 11. Second, the existence of a curb presents an additional challenge to

1 wheelchair-bound individuals that other individuals do not face, because

12 they cannot physically step up onto the sidewalk, unlike ambulatory

13 individuals.' Therefore, when on-street parking spaces are uniformly

I4 placed a substantial distance from the curb, to reach the sidewalk, an

IS ambulatory individual is required only to “cross” the bike lane to access the

I sidewalk. In contrast, a wheelchair-bound individual must proceed in the

bike lane until they reach an accessible curb ramp.

19

0 12. The parties do not dispute that at the intersections of the cross-streets □□

this portion of Reseda Boulevard, there are accessible curb ramps (1.e. curb

2? ramps as mandated by § 35.151(i)) that are accessible to wheelchair-bound

23 individuals. Additionally, an accessible mid-block curb ramp exists

24 between Rayen Street and Nordhoff Street in the altered portion of Reseda.

25 Given the position of the mid-block curb ramp approximately halfway

76 between Rayen and Nordhoff, this means that in most cases (with the

27

38 ' While no evidence was presented on this point, the Court finds this fact to be subject to judicial notice under

28 |! Fed. R. Evid. 201(b)(1).

12

| exception of the shorter distance between Rayen and Gresham, which is

2 only 356 feet), there are roughly 200 yards between accessible

3 intersections. The parking spaces on the altered portion of Reseda

4 Boulevard are not evenly distributed, and in some cases cluster near the

5 . . . .

intersections, and in other cases are clustered near the middle of the block

because of the existence of buffer zones near intersections that restrict

parking. See City Trial Ex. 4. The Court finds based on this configuration

9 that individuals with disabilities who utilize wheelchairs will frequently

10 have to travel more than 50 yards, and in some cases closer to 100 yards

1 before they reach an accessible curb ramp that permits them to exit the bike

12 lane and enter the sidewalk.

13

I4 13. There are a limited number of inactive driveways on this portion of Reseda

1D Boulevard, which create breaks in the curb. See Dkt. 89 at 2; Dkt. 85 at 7-8,

16 . . . . .

Plaintiff Trial Ex. 7 at 14. However, there is undisputed evidence in the

17

record that the slopes of all but one of these inactive driveways exceed

Is

9 8.33%. Dkt. 85 at 7-8, Plaintiff Trial Ex. 7 at 14. This exceeds the

4) maximum slope permitted under Section 405.2 of the 2010 ADA

>| Standards.' With the exception articulated in the footnote below, these

? inactive driveways do not constitute an accessible route to reach the

23 sidewalk from on-street parking.’

' The single inactive driveway with an ADA-compliant slope between Rayen and Gresham is adjacent to three

25 || parking spaces on the east side of the street. See City Trial Ex. 4 at 1. While the location and distance to that

inactive driveway with an ADA-compliant slope make the parking spaces (viewed in isolation) sufficiently

26 | accessible, because they are no more than 66 feet from an accessible route, the Court’s analysis above applies

to each of the other stretches of Reseda Boulevard relevant to this case.

27 | 2 The Court finds that applying the ADA’s fixed slope standards to disqualify these steeply sloped inactive

58 driveways in assessing the distance wheelchair-bound individuals must traverse to reach an accessible curb

28 ramp is consistent with Ninth Circuit precedent applying “feature-specific” standards to public entity facilities,

13

2 14. The Court concludes that because the on-street parking on this portion of

3 Reseda Boulevard requires wheelchair-bound individuals to roll in the bike

4 lane for a significant period of time before reaching a sidewalk, it cannot

° be considered “readily accessible” from the program accessibility

° perspective dictated by § 35.151(b)(1). The following evidentiary findings

and caselaw support this conclusion.

10 15. The Court found Plaintiffs testimony regarding his past encounters and

1 continuing fear of cyclists hitting him in the bike lane to be credible. His

12 testimony was also corroborated by the exhibits depicting the width and

13 construction of the bike lanes— each provides a single, relatively narrow

14 bike lane moving in the direction of traffic, and the narrow striped portion

IS of the cycletracks surrounding each of the bollards is not wide enough to

I permit an wheelchair-bound individual to remain in that zone while rolling

towards a curb ramp. It is readily apparent that any encounter between a

cyclist and a wheelchair-bound individual in this narrow bike lane carries

0 the potential risk of a collision and possible harm. This constitutes a

significant accessibility concern for individuals like Plaintiff.

22

23 16. The Ninth Circuit’s holding in Cohen v. City of Culver City, 754 F.3d 690

24 (9th Cir. 2014) also supports this conclusion. After concluding that the

25 “more exacting standards” of § 35.151 applied to an alleged ADA

76 violation, the Ninth Circuit found that “the existence of an arguably

27

28 Il even when no specific guidelines existed for the facilities. See Kirola, 860 F.3d at 1179-80.

14

| marginally longer alternative route” within approximately 20 yards of a

2 blocked curb ramp could not justify summary judgment on that plaintiff’ s

3 claims under the ADA. Id. at 693, 699. Here, the City altered the on-street

4 parking on Reseda Boulevard for reasons unrelated to ADA compliance,

5 . . . .

and the mere fact that the bike lane will permit wheelchair-bound

individuals to eventually reach the sidewalk from on-street parking spaces

is not sufficient in this context to satisfy the higher standard of program

9 accessibility articulated in § 35.151.

10

| 17. The Court also finds that the City’s alterations to Reseda Boulevard

12 particularly disadvantages wheelchair-bound individuals, because they

13 must frequently roll in the bike lane for a significant period of time and

14 avoid cyclists in order to reach the sidewalk.’ Ambulatory individuals do

IS not face these challenges because they merely need to cross the bike lane to

16 . . . . .

access the sidewalk. Title II of the ADA is plainly intended to redress

17

“unequal treatment in the administration of a wide range of public services,

I8

9 programs, and activities...” Tennessee v. Lane, 541 U.S. 509, 525 (2004)

4) (emphasis). Accordingly, the fact that the City’s alteration of the on-street

>| parking on Reseda Boulevard places a substantially higher burden on

? disabled individuals than on ambulatory individuals supports the Court’s

23 ||! The Court also notes that many wheelchair-bound individuals utilize side exit ramps in their vehicles, like

Plaintiff did at the time he encountered difficulties parking on Reseda and rolling in the bike lane, because he

24 |jwas no longer able to deploy his lift directly onto the sidewalk. See Dkt. 87 at 3. The 2010 ADA Standards

expressly mandates for access aisles of 60 inches parallel to accessible parking spots. See Section 502.3, 2010

25 ||ADA Standards. The advisory guidelines specifically note that “Wheelchair lifts typically are installed on the

assenger side of vans. Many drivers, especially those who operate vans, find it more difficult to back into

26 llparking spaces than to back out into comparatively unrestricted vehicular lanes. For this reason, where a van and

car share an access aisle, consider locating the van space so that the access aisle is on the passenger side of the

27 Wan space.” Section 502.4 (emphasis added). The Court finds these portions of the 2010 ADA Standards relevant

58 in assessing whether the City’s decision to install cycletracks and move on-street parking substantially further

28 |lrom the curb creates an accessibility challenge for individuals like Plaintiff.

15

| conclusion that the altered portion of Reseda Boulevard is not “readily

2 accessible” for purposes of 28 C.F.R. § 35.151(b)(1).

4 18.‘ The City argued at trial that the existence of accessible parking provided by

° private entities in off-street parking lots on this portion of Reseda

Boulevard supports a finding that the City’s on-street parking is readily

accessible. The Court can find no support in Ninth Circuit or persuasive

caselaw for the proposition that the Title III obligations of private

10 businesses should factor into the program accessibility requirements of

1 Title II that are specifically mandated for public entities like the City. As a

12 practical matter, this would create substantial uncertainty because different

13 kinds of establishments have different obligations under the ADA, and may

14 or may not be obligated to provide accessible off-street parking.

IS Determining whether the City has complied with Title IT based on the then-

16

current Title III compliance of the businesses currently operating on

17

Reseda Boulevard would inappropriately make provision of accessible

I8

9 parking “contingent upon the cooperation of third persons.” Am. Council

4) of the Blind v. Paulson, 525 F.3d 1256, 1269 (D.C. Cir. 2008); see also

>| Disabled in Action v. Board of Elections in the City of New York, 752 F.3d

2? 189, 200 (2d Cir. 2014) (access “should not be contingent on the

23 happenstance that others are available to help”). Moreover, as Plaintiff

24 noted in his testimony, some off-street accessible parking on Reseda

25 Boulevard is not fully ADA-compliant, and to the limited extent it was

76 available during his visits, these parking spaces were often already in use

27

by other customers

28

16

2 19. _ Plaintiff’s expert witness Paul Bishop (“Bishop”) testified regarding

3 modifications to the on-street parking on the altered portion of Reseda

4 Boulevard. In particular, he identified specific locations on the altered

5 . . .

portion of Reseda Boulevard near the intersection of Reseda and Dearborn

Street, Rayen Street, Nordhoff Street, and fronting 8920 Reseda Boulevard

where accessible parking could be provided, generally near existing curb

9 ramps at intersections. Bishop’s testimony established that relatively

10 minimal modifications at these locations would be feasible, because in

1 most cases the changes would amount to painting and signing these

12 locations to reserve them for disabled individuals, and moderate

13 adjustments to the size of the buffer zone and width of the cycletracks. In

14 one circumstance, these modifications require adding a curb ramp. See Dkt.

iS 85 at 8-12.

16

| 7

20. The Court finds that the inclusion of four disabled parking spaces at these

I8

9 locations would adequately address the accessibility violations the Court

4) has found exist on this portion of Reseda Boulevard. In particular they

>| ensure that wheelchair-bound individuals have access to on-street parking

? spaces that are in close proximity to accessible curb ramps, limiting the

23 period of time they must roll in the bike lane in order to reach the sidewalk

24 from the on-street parking spaces.' The Court also notes that Bishop’s

25

26 ll Inits arguments at trial, the City describes these proposed modifications as “preferential treatment” for disabled

individuals, which the ADA does not require. This is not preferential treatment. The alterations to Reseda’s on-

27 Istreet parking create a unique challenge for wheelchair-bound individuals. Providing reserved parking at specific

58 locations that are in close proximity to curb ramps simply minimizes the negative impact of the City’s alterations

28 lon these individuals.

17

| recommendations are also consistent with guidance on integrating

2 accessible parking with cycletracks recommended by the Federal Highway

3 Administration in a report provided as an exhibit by the City. See City Trial

4 Ex. 8 at 97-98 (articulating guidance that accessible parking should be

° placed near the start of a block and providing exhibits connecting

accessible parking to curb ramps).

9 21. — Public entities like the City are required to meet the “readily accessible”

10 standard with regard to program accessibility of altered facilities “to the

| maximum extent feasible...” 28 C.F.R. § 35.151(b)(1). The court

12 interprets this language to place the burden on the City to show that the

13 changes proposed by Bishop are infeasible.

14

IS 22. The City has not shown that these modifications to the on-street parking

I spaces would be infeasible. The only dispute the City raised at trial was

with regard to the slope of these parking spaces, and Bishop’s proposed

modifications to these locations do not require altering the slope of the road

0 in a manner that would interfere with other state and federal regulations

regarding roadways slopes and safe drainage of water.

22

23 23. The only other objection to this proposal raised by the City is general

24 testimony that community response to including accessible parking on

25 Reseda Boulevard was negative. Dkt. 84-5. The Court does not find that

76 this type of community reaction constitutes sufficiently probative evidence

“7 of infeasibility, under these circumstances, to defeat feasibility given the

28

18

| general purpose of the ADA, and the lack of caselaw supporting such an

2 inference. See Chapman v. Pier I Imports (U.S.) Inc., 631 F.3d 939,

3 944-45 (9th Cir. 2011 (“[the ADA’s] passage was premised on Congress's

4 finding that discrimination against the disabled is ‘most often the product,

° not of invidious animus, but rather of thoughtlessness and indifference, of

° “benign neglect,’ and of ‘apathetic attitudes rather than affirmative

animus’”). A negative community reaction to inclusion of disabled parking

9 spots does not make increasing accessibility infeasible in these

10 circumstances. See Bassilios v. City of Torrance, 166 F. Supp. 3d 1061,

| 1078 (C.D. Cal. 2015) (finding that community objections to installing a

12 disabled parking spot was not a “relevant consideration”).

13

14 24. Because the Court finds that the public on-street parking on the altered

IS portion of Reseda Boulevard is not “readily accessible,” and that

I modifications to the parking that would remedy this issue are not

infeasible, it finds that Plaintiff has established that the City has violated

Title Il of the ADA.

20

>| 25. The Court now addresses Plaintiff's damages claim based on the City’s

? alleged deliberate indifference with regard to its violation of the ADA.

23

24 26. ‘In order to recover monetary damages under the ADA, individual

25 plaintiffs must prove that the public entity intentionally discriminated

76 against disabled individuals. Duvall v. County of Kitsap, 260 F.3d 1124,

“7 1138 (9th Cir. 2001) (citing Ferguson v. City of Phoenix, 157 F.3d 668,

28

19

| 674 (9th Cir. 1998)). In Duvall, the Ninth Circuit affirmatively adopted

2 “deliberate indifference” as the standard for proving this intentional

3 discrimination. Jd. at 1138. To establish deliberate indifference, a plaintiff

4 must show that (1) the defendant had “knowledge that a harm to a federally

° protected right is substantially likely,” and (2) the defendant “fail[ed] to act

° upon that ... likelihood.” Jd. at 1139. The first element of the deliberate

indifference test—notice—is satisfied “[w]hen the plaintiff has alerted the

9 public entity to his need for accommodation (or where the need for

10 accommodation is obvious, or required by statute or regulation).” Jd. at

| 1139. The second element of deliberate indifference is satisfied where “the

12 entity's failure to act ‘[is] a result of conduct that is more than negligent,

13 and involves an element of deliberateness.’” Updike v. Multnomah County.,

I4 870 F.3d 939, 951 (9th Cir. 2017) (quoting Duvall, 260 F.3d at 1139); see

IS also Payan v. L.A. Cmty. Coll. Dist., 2018 WL 6164269, at *17 (C.D. Cal.

I Oct. 16, 2018).

17

18 27. The Court does not find that Plaintiff placed the City on notice of his

19 request for accommodation. First, there was no evidence or testimony in

20 the case establishing whether the three letters plaintiff claims he sent to the

City’s Department of Street Maintenance (“DSM”) were ever actually

°° received. Multiple witnesses for the City stated in their direct testimony

declarations (and were not cross-examined by Plaintiff on this point) that

. they could find no records of these letters. Dkt. 84-2 at 3; Dkt. 84-4 at 2.

6 The Court does not find Plaintiffs assertion that he mailed these letters to

47 the DSM sufficient to constitute notice of a request for accommodation.

28 Deliberate indifference requires intentional discrimination, and to the

20

| extent that Plaintiff's requests were sent to a City department that does not

2 handle accessibility issues, the Court finds this to be insufficient to satisfy

3 the notice requirement, without any evidence that the City intentionally

4 ignored his request for accommodation. Duvall, 260 F.3d at 1138. To the

° extent that “bureaucratic slippage” may have caused a failure to transfer the

° letters to the appropriate City Department, the Court also finds that the

Ninth Circuit’s holdings with regard to the second prong (failure to act) can

9 also be applied to the notice requirement. See Duvall, 260 F.3d at 1138-39

10 (“bureaucratic slippage” not sufficient to constitute a deliberate failure to

1 act).

12

5 28. Plaintiff did have a conversation with Angela Kaufman in her capacity as

1 an ADA compliance officer in September 2016. Plaintiff's direct testimony

15 declaration states that he had a conversation with Kaufman where he made

16 a “request for accessible parking.” Dkt. 87 at 5. In his trial testimony,

17 Plaintiff did not testify that he made such an express request, just that he

18 expressed his general displeasure with the cycletracks and wanted them to

19 be removed by the City because he believed they violated the ADA. Ms.

20 Kaufman testified that she remembered the conversation only in general

terms (after being refreshed by her participation in this litigation), and that

°° she told Plaintiff that the cycletracks were not going to be removed, and

that the City believed they were currently ADA-compliant. The relief that

□ Plaintiff now seeks is not removal of the cycletracks at all, and the Court

6 finds that Plaintiff’s conversation expressing his displeasure and seeking

47 their removal is not sufficient notice to constitute a request for

28 accommodation in this factual context.

21

| 29. Even if the record contained sufficient evidence to show that Plaintiff

2 made a request for accommodation, the Court also finds that the City’s

3 conduct here does not meet the second prong of the deliberate indifference

4 standard. The testimony of Angela Kaufman (“Kaufman”) during the trial

° and Plaintiffs recollection of the conversation established that the City

° believed that further alteration of the public on-street parking on Reseda

Boulevard was not legally required by the ADA. Similarly, the direct

9 testimony declaration of Luis Mata established that the City’s position at

10 this point in time, as determined by the Department of Disability (“DOD”)

1 responsible for addressing accessibility issues, was that complaints

12 regarding the on-street parking on Reseda Boulevard would be resolved

13 through the Willits settlement, based on his investigation into the complaint

I4 filed by prior Plaintiff Gary Scherer. Dkt. 84-4 at 2. Finally, exhibits

IS provided by the City, the direct testimony declaration of Robert Sanchez,

I and portions of Kaufman’s testimony established that the City had engaged

in testing of the cycletracks with wheelchair-bound individuals during

installation of the cycle tracks. See City Trial Exhibit 10; Dkt. 84-5 at 3-4.

20 30. The Court finds that this evidence establishes that the City did not take

further action because (1) it did not believe that the ADA required

°° additional modifications to the on-street parking on Reseda Boulevard

given the lack of technical specifications for on-street parking, (2) it

. believed that the parking spaces provided on Reseda were adequate to

6 deploy wheelchairs from vehicles based on previous testing, and (3) the

7 DOD believed that the Willits settlement would address the type of

28 complaints raised by Plaintiff in his call with Kaufman.

22

| 31. The City was ultimately incorrect given the conclusions this Court reached

2 above. But the Court does not find that their conduct with regard to

3 Plaintiff can appropriately be described as “conduct that is more than

4 negligent, and involves an element of deliberateness.” Updike, 870 F.3d at

° 951. There were (and remain) no technical specifications for on-street

° parking in the 2010 ADA Standards, and the Ninth Circuit only held that

the ADA imposes program accessibility requirements on public entities for

9 on-street parking in September 2014, shortly before the cycletracks were

10 installed. See Fortyune, 766 F.3d at 1103. There have been no subsequent

1 Ninth Circuit cases (and very limited district court precedent) applying

12 these broad program accessibility requirements to public on-street parking.

13 See, e.g. Bassilios, 166 F. Supp. 3d at 1072-1081. The Court was required

14 to hold a bench trial before it ultimately concluded that the on-street

IS parking on Reseda Boulevard violated the program accessibility

I requirements of § 35.151(b)(1). Similarly, this Court previously agreed

with the City regarding the impact of the Willits settlement on these claims,

and only reached a different conclusion after considering extrinsic

0 evidence. Compare Dkt. 20 with Dkt. 38.

32. As the Court has previously explained, it does not find that rote application

°° of the 2010 ADA Standards regarding off-street parking is appropriate

given the nature of Plaintiff’s accessibility claims. Therefore, the fact that

. the on-street parking on the altered portion of Reseda did not comply with

6 those technical specifications does not mean the City’s failure to act was

47 deliberate. Similarly, the City’s efforts to test the accessibility of the

28 cycletracks with wheelchair-bound individuals during the cycletrack

23

installation process on Reseda strongly suggests that the City’s (incorrect)

2 belief that further alteration was not necessary was based on a good faith

3 belief that the cycletracks (as constructed) complied with the ADA.

5 33. In these circumstances, the Court does not find that the City acted with

6 deliberate indifference or intentionally discriminated against Plaintiff.

7

34. By violating the ADA, the City also violated Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794; and California Government Code §

10 11135. The elements of Plaintiff's ADA claim and claims under these

statutes are co-extensive. See Zukle v. Regents of Univ. of California, 166

12 F.3d 1041, 1045 (9th Cir. 1999); Cal. Gov’t Code § 11135(b).

13

35. The City is ordered to install four ADA-compliant accessible parking

14

spaces and make the modifications proposed by Bishop at the locations

16 specified in his expert report. See Dkt. 85 at 8-12.

17

36. Plaintiff is instructed to submit a proposed Final Judgment in accord with

I8

these Findings of Fact and Conclusions of Law within 21 days of the filing

19

of this Order.

20

2|

7 IT IS SO ORDERED

23

24 Date: August 12, 2020

25 . hy er fe } L-

>< Lief vtey, JO Z | y)

26 i ES eee +} —____

07 HON. STEPHEN V. WILSON

28 UNITED STATES DISTRICT JUDGE

24