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September 4, 1997

CITY OF CARLSBAD and DOES 1 THROUGH 10, Inclusive, Defendant.

The opinion of the court was delivered by: GONZALEZ


 On December 23, 1996, plaintiffs filed a second amended complaint on behalf of a proposed class *fn1" which alleges violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et. seq., the Rehabilitation Act, 29 U.S.C. § 794, and the California Unruh Civil Rights Act, Cal Civ. Code § 51 et seq. *fn2" Plaintiffs name the City of Carlsbad as the defendant. Plaintiffs seek damages, attorney's fees, and "such other further relief as the court deems proper."

 In the complaint, plaintiffs allege that, on different dates in 1996, they were unable to access specific buildings or use the defendant's parking facilities, ramps, and streets because of the defendant's failure to comply with the ADA. Plaintiffs bring claims under the ADA and the Rehabilitation Act for: 1) denial of full and equal access to defendant's facilities and services; and 2) discrimination on the basis of their disabilities.


 A. Standing and Statutes of Limitations Under the ADA

 As a preliminary matter, the Court addresses the issues of standing and statute of limitations raised by the defendant in its motion for summary judgment.

 1. "Qualified Individuals with Disabilities" Under the ADA

 In order to have standing under Title II of the ADA, which requires that "reasonable modifications" be made to public services and programs that discriminate on the basis of disability, a plaintiff must show that he or she is a "qualified individual with a disability." 42 U.S.C. § 12132. The term "qualified individual with a disability" is defined as:

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

 42 U.S.C. § 12131(2).

 Plaintiff Bernard Schonfeld suffers from a spinal cord injury and uses a wheelchair for mobility. Plaintiff Alice Schonfeld, who at times must use a wheelchair, suffers from a mental impairment which affects her neurological, musculoskeletal, special sense organs, and cardiovascular systems. (Complaint paras. 7, 17; Deposition of Alice Schonfeld attached as Plaintiffs' MSJ Exhibit I p. 65, ll. 13- 28, p. 66, ll. 1 - 22). Plaintiffs allege that they have been residents of the City of Carlsbad since December 1995. (Deposition Transcript of Bernard Schonfeld attached as Plaintiffs' MSJ Exhibit H p. 66, ll. 4 - 18).

 Defendant argues that plaintiffs are not "qualified individuals with disabilities" if they do not request defendant's services. Defendant explains that plaintiffs should have made formal requests to utilize the facilities and services that are the subject of the instant lawsuit before bringing suit. The Court finds this argument without merit. The ADA does not require plaintiffs bringing a claim alleging inadequate access to a facility to have "formally" requested to use the facility. As for defendant's contention that standing under the ADA requires a plaintiff show that he/she was actually excluded from participation, denied benefits, or otherwise discriminated against by the defendant on the basis of his/her disability, the Court notes that defendant is confusing the allegations and evidence required to state and prove an ADA claim with the principle of standing.

 As disabled residents of the City of Carlsbad, plaintiffs meet the "essential eligibility requirements" for the receipt of services and the participation in programs and activities provided by the defendant. Thus, the Court finds that plaintiffs are "qualified individuals with disabilities" within the meaning of the ADA and have standing to bring this action. The Court further notes that there appears to be no dispute that defendant, the City of Carlsbad, as a public entity which employs 50 or more persons, owns and/or operates several facilities, and maintains numerous streets and sidewalks, is subject to the requirements of Title II of the ADA.

 2. Statute of Limitations

 Defendant also argues that plaintiffs' ADA claims are barred by California's one-year personal injury statute of limitations. Cal. Code of Civil Procedure § 340(3).

 The ADA, like many federal civil rights statutes, does not contain a specific statute of limitations. Thus, the most appropriate state limitations period applies. Wilson v. Garcia, 471 U.S. 261, 266-67, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). As noted by the Seventh Circuit in Soignier v. American Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996), cert denied 136 L. Ed. 2d 716, 117 S. Ct. 771 (1997), actions for discrimination under the ADA are best characterized as actions for "fundamental injury to the individual rights of a person." Soignier, 92 F.3d at 551 (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987)); Wilson, 471 U.S. at 280. See also Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993), cert denied 510 U.S. 1076, 127 L. Ed. 2d 83, 114 S. Ct. 890 (1994) (state statutes of limitations are applicable to civil rights actions under 42 U.S.C. §§ 1981, 1983, 1985, and 2000d).

 The Court declines to accept defendant's contention that an ADA plaintiff's claims accrue on precisely the date on which a public entity's transition plan and self-evaluation are due under the ADA. Furthermore, even applying California's one-year statute of limitations for personal injury actions, plaintiffs' claims are not time-barred. Plaintiffs' claims of inadequate access and discrimination arise out of factual allegations -- beginning on January 26, 1995 and continuing afterward -- that they were allegedly "excluded from participation in or [were] denied the benefits of the services, programs or activities of" the defendant or were "subjected to discrimination" by the defendant. 42 U.S.C. § 12132. Plaintiffs filed their original complaint, based on the allegedly continuing ADA violations, on May 10, 1996. Thus, the Court finds that plaintiffs' suit was timely filed. See Indep. Housing Services v. Fillmore Ctr., 840 F. Supp. 1328, 1346 (N.D. Cal., 1993) (maintenance of a discriminatory system before and during the limitations period is a continuing violation).

 B. The Parties' Cross-Motions for Summary Judgment

 1. Legal Standard

 Summary judgment is proper where the moving party demonstrates "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party meets its burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To avoid summary judgment, the nonmoving party must go beyond the pleadings and offer "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Throughout the review of a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587-88, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)). "Finally, if the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert denied 484 U.S. 1006, 98 L. Ed. 2d 650, 108 S. Ct. 698 (1988).

 2. Analysis

 Plaintiffs move for summary judgment on grounds that defendant: 1) failed to have a Transition Plan by July 26, 1992 which contained a schedule for the installation of curb ramps; 2) failed to make existing facilities accessible and install curb ramps to its existing sidewalks by January 26, 1995; and 3) improperly modified existing curb ramps such that they are not in compliance with the ADA Access Guidelines for buildings (ADAAG). (Plaintiffs' MSJ p. 2, ll. 9 - 19). Defendant moves for summary judgment on grounds that: 1) defendant formulated a detailed transition plan by July 26, 1992 which contained more improvements than required to achieve legal accessibility; 2) defendant conducted an extensive self-evaluation; 3) defendant's existing services, programs, and facilities, when each viewed in their entirety, are currently accessible to the disabled; and 4) all of the defendant's newly altered or constructed curb ramps are ADA-compliant. Defendant further argues that plaintiffs' claims are moot because any uncompleted modifications are scheduled to be completed by December 31, 1997. (Defendant's MSJ p. 2, ll. 7 - 24).

 The Americans with Disabilities Act of 1990

 In 1992, Congress enacted the ADA to address the problem of discrimination against persons with disabilities. Specifically, the ADA prohibits discrimination in employment (Title I), in public services and public transportation (Title II), in public accommodations (Title III), and in telecommunications (Title IV). Title II, which is the subject of this dispute, provides:

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 ...

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