United States District Court, N.D. California
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS.
S. HIXSON United States Magistrate Judge
case concerns alleged violations of the Americans with
Disabilities Act and other civil rights laws and allegations
of negligence after Plaintiff fell from her mobility device
scooter while riding a bus operated by Defendants. Pending
before the Court are Defendants' Motion for Summary
Judgment, ECF No. 175, and Plaintiff's Motion for Partial
Summary Judgment, ECF No. 185. The parties have filed
oppositions (EFC Nos. 187, 188) and replies (ECF Nos. 192,
193). Having considered the parties' positions, relevant
legal authority, and the record in this case, the Court
DENIES Plaintiff's motion and
GRANTS Defendants' motion.
August 25, 2014, Plaintiff Amanda Jones, then a resident of
Chicago, was in Santa Cruz to attend a three- to four-day
research conference for her PhD program. Decl. of Amanda
Jones in Supp. of Pl.'s Mot. for Partial Summ. J.
(“Jones Decl.”) ¶ 3, ECF No. 185-4; Howie
Decl. ¶ 5, Ex. C at 11:24-12:2 (Jones Depo. Vol. 1), ECF
No. 175-3. At some point during the day, Jones took the
AMTRAK Highway 17 Express Bus #2310 (the “Hwy 17
Bus” or “Bus #2310”), from Santa Cruz to
San Jose. Jones Decl. ¶ 3; TAC ¶ 14, ECF No. 155.
The bus was operated by Santa Cruz Metropolitan Transit
District (“SCMTD”) in contract with the National
Railroad Passenger Corporation (“AMTRAK”).
Pl.'s Controverting Statement of Facts ¶ 10, ECF No.
188-1; Howie Decl. ¶ 4, Ex. B. At that time, Jones was
traveling with a motorized scooter because she was recovering
from knee surgery and wanted to avoid walking long distances
and on hills. Jones Decl. ¶ 4. Jones boarded the bus
with her scooter. Once onboard, the coach operator, Sergio
Gonzalez, tried to help Jones secure her scooter in place
using securement equipment on the bus. Jones attempted to
suggest a method of securing the device that was different
from the method Gonzalez was using. Jones Decl. ¶ 5.
Gonzalez insisted that he knew how to secure the device and
used his own method. Id. After attempting to secure
Jones's scooter, Gonzalez proceeded to start the drive
from Santa Cruz to San Jose. Id. Jones remained
seated on her scooter while on the bus.
point during the journey to San Jose, the scooter (with Jones
on it) fell over, and Jones fell to the floor. Id.
Gonzalez stopped the bus, and with the help of another
passenger, helped Jones and her scooter off the floor.
Id. ¶ 6; Howie Decl. ¶ 3, Ex. A
(“Accident Report”). Gonzalez called his road
supervisor and dispatch to report the accident. Accident
Report; Jones Decl. ¶ 6; Gonzalez Decl. ¶ 6, ECF
No. 187-5. Dispatch contacted emergency services, which
arrived on the scene. Accident Report; Gonzalez Decl. ¶
6; Howie Decl. ¶ 5, Ex. C at 49:17-23. Jones declined
assistance from emergency services, and the bus continued to
San Jose. Howie Decl. ¶ 5, Ex. C at 49:22-50:13;
Gonzalez Decl. ¶ 6.
filed suit against Defendants on June 17, 2015, alleging
various violations of federal and California civil rights
laws, as well as negligence, in connection with her fall.
Five counts survive in her Third Amended Complaint
I. Violation of Americans with Disabilities Act (AMTRAK)
II. Violation of Americans with Disabilities Act (SCMTD)
III. Violation of Section 504 of the Rehabilitation Act of
1973 (All Defendants)
IV. Violation of California Unruh Civil Rights Act (All
V. Negligence (All defendants)
parties have cross-filed motions for summary judgment.
judgment is proper where there is “no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party moving for summary judgment bears the initial burden of
identifying those portions of the pleadings, discovery and
affidavits that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Material facts are those that may affect the
outcome of the case, and a dispute as to a material fact is
genuine if there is sufficient evidence for a reasonable jury
to return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
moving party meets its initial burden, the opposing party
must then set forth specific facts showing that there is some
genuine issue for trial. Fed.R.Civ.P. 56(c)(1);
Anderson, 477 U.S. at 250. All reasonable inferences
must be drawn in the light most favorable to the nonmoving
party. Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004). However, it is not the task of the
Court “‘to scour the record in search of a
genuine issue of triable fact.'” Keenan v.
Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citation
omitted). The nonmoving party has the burden “to
identify with reasonable particularity the evidence that
precludes summary judgment.” Id. Thus,
“[t]he district court need not examine the entire file
for evidence establishing a genuine issue of fact, where the
evidence is not set forth in the opposing papers with
adequate references so that it could conveniently be
found.” Carmen v. S.F. Unified Sch. Dist., 237
F.3d 1026, 1031 (9th Cir. 2001).
the evidence presented at the summary judgment stage does not
yet need to be in a form that would be admissible at trial,
the proponent must set out facts that it will be able to
prove through admissible evidence.” Norse v. City
of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (citing
Fed.R.Civ.P. 56(c) (“An affidavit or declaration used
to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.”)). To survive
summary judgment, the nonmoving party “must set forth
non-speculative evidence of specific facts, not sweeping
conclusory allegations.” Cafasso, U.S. ex rel. v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011) (citations omitted).
Violations of the ADA, the Rehabilitation Act, and the Unruh
The Statutory Schemes
The ADA and the Rehabilitation Act
Title II of the American with Disabilities Act
(“ADA”) and § 504 of the Rehabilitation Act
“include an affirmative obligation for public entities
to make benefits, services, and programs accessible to people
with disabilities.” Updike v. Multnomah, 870
F.3d 939, 949 (9th Cir. 2017) (citations omitted). To state
claim under Title II of the ADA, “a plaintiff must show
that: (1) he is a ‘qualified individual with a
disability'; (2) he was ‘excluded from
participation in or was denied the benefits of the services,
programs, or activities of a public entity' or otherwise
‘subjected to discrimination by any such entity';
and (3) the exclusion, denial, or discrimination was
‘by reason of such disability.'” Kimbro
v. Miranda, 735 Fed.Appx. 275, 277 (9th Cir. 2018)
(citing 42 U.S.C. § 12132; Weinreich v. Los Angeles
Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.
1997)). “Title II of the ADA was expressly modeled
after § 504 of the Rehabilitation Act.”
Updike, 870 F.3d at 949 (citing Duvall v. Cnty.
of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)). Thus,
under § 504 of the Rehabilitation Act, a plaintiff
similarly must show: “(1) he is an ‘individual
with a disability'; (2) he is ‘otherwise
qualified' to receive the benefit; (3) he was denied the
benefits of the program solely by reason of his disability;
and (4) the program receives federal financial
assistance.” Weinreich v. Los Angeles County Metro.
Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (citing
29 U.S.C. § 794). “There is no significant
difference in analysis of the rights and obligations created
by the ADA and the Rehabilitation Act.” Zukle v.
Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11
(9th Cir. 1999). “Thus, courts have applied the same
analysis to claims brought under both statutes[.]”
Id. (citing Doe v. Univ. of Maryland Med. Sys.
Corp., 50 F.3d 1261, 1265 n.9 (4th Cir. 1995)
(“Because the language of the two statutes is
substantially the same, we apply the same analysis to
regulations implementing Title II require public entities to
“make reasonable modifications in policies, practices,
or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity.” 28 C.F.R. § 35.130(b)(7). The Ninth
Circuit has stated that “[a]lthough Title II of the ADA
uses the term ‘reasonable modification,' rather
than ‘reasonable accommodation,' these terms create
identical standards.” McGary v. City of
Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004)
(citing Wong v. Regents of Univ. of Cal., 192 F.3d
807, 816 n.26 (9th Cir. 1999)).
damages are not available under Title II or § 504 absent
a showing of discriminatory intent.'”
Updike, 870 F.3d at 950 (quoting Ferguson v.
City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998),
as amended (Oct. 8, 1998)). To show intentional
discrimination, the Ninth Circuit requires that “the
plaintiff show that a defendant acted with ‘deliberate
indifference,' which requires ‘both knowledge that
a harm to a federally protected right [wa]s substantially
likely, and a failure to act upon that
likelihood.'” Updike, 870 F.3d at 950-51
(quoting Duvall v. County of Kitsap, 260 F.3d 1124,
1139 (9th Cir. 2001)).
The Unruh Act
“The Unruh Act . . . ‘entitle[s] individuals to
full and equal access to public accommodations.'”
Kohler v. Flava Enters., 826 F.Supp.2d 1221, 1231
(S.D. Cal. 2011) (quoting Californians for Disability
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