ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AS MOOT [Docs. # # 37, 41, 48]
On December 23, 1996, plaintiffs filed a second amended complaint on behalf of a proposed class
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.
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.
The parties have now filed cross-motions for summary judgment under Fed. R. Civ. P. 56.
Plaintiffs have also filed a motion for certification of class under Fed. R. Civ. P. 23. After reviewing the memoranda and declarations filed, the Court finds the matter suitable for disposition without oral argument. Local Rule 7.1(d)(1).
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).
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 be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits discrimination against disabled individuals by any program receiving public funds.
The ADA prohibits discriminatory effect regardless of a public entity's motive or intent. Tyler v. City of Manhattan, 857 F. Supp. 800, 814 (D. Kan. 1994). A qualified individual with a disability may bring an action under the ADA without exhausting federal administrative remedies. Tyler, 857 F. Supp. at 812.
For ADA claims alleging discrimination on the basis of disability, the plaintiff carries the burden of proof. Id. ; 42 U.S.C. § 12132. To prove that a public program or service violates Title II, a plaintiff must show: (1) he/she is a "qualified individual with a disability"; (2) he/she was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his/her disability. 42 U.S.C. § 12132; Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976, 978 (9th Cir. 1997). Similarly, under Section 504 of the Rehabilitation Act, a plaintiff must show: (1) he/she is an "individual with a disability"; (2) he/she is "otherwise qualified" to receive the benefit; (3) he/she was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. 29 U.S.C. § 794; Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988).
The ADA directs the United States Attorney General to promulgate regulations to implement Title II of the ADA. These regulations are codified in Title 28, Chapter 35 of the Code of Federal Regulations ("ADA Regulations"). There is a private right of action for enforcement of these regulations to require public entities to implement nondiscriminatory standards and proceed to make necessary modifications. Miller v. City of Johnson City, Tennessee, 1996 U.S. Dist. LEXIS 7360, 1996 WL 406679 at *2 (E.D. Tenn., 1996).
a. The ADA Requires that a Public Entity Evaluate its Current Services, Policies and Practices as well as Develop and Adopt a Comprehensive Transition Plan.
The "ADA Regulations" require a public entity to "evaluate its current services, policies and practices, and the effects thereof."
A self-evaluation is to be conducted within one year of the effective date of the regulations. The ADA regulations became effective on July 26, 1991. See 28 C.F.R. § 35.105(a); see also 42 U.S.C. § 12134(a). Therefore, defendant should have completed its self-evaluation no later than July 26, 1992.
Plaintiffs allege that defendant "failed to conduct a lawful self-evaluation." (Complaint para. 15). However, defendant provides evidence that it conducted a self-evaluation, through its ADA Task Force, which identified existing facilities where services and programs are offered, the improvements required for ADA compliance, the estimated cost of the improvements, and the schedule for completion in terms of fiscal years. Defendant's ADA Task Force received input from City Departments and other interested parties, conducted Access Assessments for each publicly used site, prepared checklists for facility inspection, and compiled information for the development of defendant's Transition Plan. (Defendant's MSJ Exhibits 1 - 5; Boensch Declaration paras. 5 - 6; Walden I Declaration paras. 5 - 6). In June 1992, defendant's Department Heads conducted 25 facility-by-facility ADA evaluations which were compiled by the City Manager in a Self-Evaluation Summary. (Defendant's MSJ Exhibits 1, 7 - 8; Boensch Declaration paras. 5, 9; Walden I Declaration paras. 5, 9). The Self-Evaluation Summary incorporates information on: the availability of telephone devices and other assistive listening devices for the deaf, electronic print magnifiers, close-captioned videos, large type books, talking books, staff assistance for disabled persons seeking to fill out various applications and read City documents, sign language assistance in defendant's recreational areas, employment practices, police assistance for the disabled, and procedures to evacuate disabled individuals during an emergency. (Defendant's MSJ Exhibit 8).
On the basis of the evidence presented by the parties, the Court finds that plaintiffs have failed to come forward with persuasive evidence to show there is a genuine issue for trial in support of their claim that defendant's self-evaluation failed to comply with ADA Regulations. Furthermore, the Court finds that defendant has presented persuasive evidence that it conducted the self-evaluation in a timely fashion, solicited input from a variety of sources, identified the facilities, programs and services it offers, and assessed the improvements required for ADA compliance.
Accordingly, the Court GRANTS summary judgment to the defendant and DENIES summary judgment to the plaintiffs on plaintiffs' ADA claim that defendant's self-evaluation was not in compliance with ADA Regulations.
(2) Transition Plan
Public entities employing at least 50 persons must adopt a transition plan by July 26, 1992, if structural changes are undertaken to achieve program accessibility. See 28 C.F.R. § 35.150(d)(1). The transition plan shall, at a minimum:
(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities;
(ii) Describe in detail the methods that will be used to make the facilities accessible;