Robin K Fortyune v. City of Lomita et al

Filing 15

ORDER by Judge Dean D. Pregerson: denying 6 defendant City of Lomita Motion to Dismiss. (lc) Modified on 10/28/2011 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBIN K. FORTYUNE,

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Plaintiff,

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v.

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CITY OF LOMITA,

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Defendant.
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Case No. CV 11-06644 DDP (JCGx)
ORDER DENYING DEFENDANT’S MOTION
TO DISMISS
[Docket No. 6]

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Presently before the court is Defendant City of Lomita’s

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Motion to Dismiss Plaintiff Robin K. Fortyune’s Complaint

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(“Motion”).

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considering the arguments therein, the court DENIES the City’s

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Motion.

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I.

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After reviewing the parties’ moving papers and

BACKGROUND
Plaintiff Robyn K. Fortyune is a California resident with

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physical disabilities.

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has violated the Americans with Disabilities Act (“ADA”) and the

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California Disabled Persons Act (“DPA”), by failing to provide any

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handicap-accessible public parking in its on-street diagonal

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She alleges that Defendant City of Lomita

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stalls.1

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with disabilities full and equal access to its programs and

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facilities.

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Plaintiff contends that the City thereby denies persons

(Compl. ¶¶ 1, 5.)

Plaintiff brought suit in Los Angeles County Superior Court,

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on July 1, 2011, and the City removed the action to federal court,

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on August 12, 2011.

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to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

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alleging that accessible on-street parking in the public right-of-

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way is not required under the ADA or its implementing regulations.

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II.

The City then filed this Motion

(Dkt. No. 6.)

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(Dkt. No. 1.)

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) requires courts to

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dismiss claims for which no relief can be granted.

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considering a 12(b)(6) motion, “all allegations of material fact

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are accepted as true and should be construed in the light most

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favorable to the plaintiff.”

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(9th Cir. 2000).

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that a court should first “identify[] pleadings that, because they

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are no more than conclusions, are not entitled to the assumption of

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truth.”

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identify the complaint’s “well-pleaded factual allegations, . . .

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assume their veracity and then determine whether they plausibly

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give rise to an entitlement to relief.”

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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“In sum, for a

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complaint to survive a motion to dismiss, the non-conclusory

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factual content, and reasonable inferences from that content, must

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When

Resnick v. Hayes, 213 F.3d 443, 447

In Ashcroft v. Iqbal, the Supreme Court explained

129 S. Ct. 1937, 1950 (2009).

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Next, the court should

Id.; see also Moss v. U.S.

Plaintiff has voluntarily dismissed her claim as to onstreet parallel parking, although the City allegedly provides no
handicap-accessible parallel parking either. (Compl. ¶ 5.)
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be plausibly suggestive of a claim entitling the plaintiff to

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relief.”

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III. DISCUSSION

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(internal quotation marks omitted)).

Title II of the ADA provides that “no qualified individual

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with a disability shall, by reason of such disability, be excluded

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from participation in or be denied the benefits of the services,

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programs, or activities of a public entity, or be subjected to

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discrimination by any such entity.”

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Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001) (“Quite

42 U.S.C. § 12132; see also

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simply, the ADA’s broad language brings within its scope anything a

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public entity does.”

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public entity is therefore required to “operate each service,

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program, or activity so that the service, program, or activity,

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when viewed in its entirety, is readily accessible to and usable by

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individuals with disabilities.”

(internal quotation marks omitted)).

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28 C.F.R. § 35.150(a).2

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Implementing regulations also detail requirements for

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particular public services, programs, and activities, providing

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specificity to the ADA’s general mandate.

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35.150(d)(2), 35.151(i) (requiring curb ramps or other sloped areas

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for pedestrian access to sidewalks at intersections).

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here, for instance, the Architectural and Transportation Barriers

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Compliance Board recently proposed guidelines requiring set amounts

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of on-street parking to be handicap-accessible.

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Guidelines for Pedestrian Facilities in the Public Right-of-Way, 76

See, e.g., 28 C.F.R. §§

Relevant

See Accessibility

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It is unnecessary to address the California Disabled
Persons Act separately, since a “violation of the right of an
individual under the [ADA] also constitutes a violation” of the
DPA. Cal. Civ. Code § 54(c).
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Fed. Reg. 44664, 44677 (proposed July 6, 2011) (to be codified at

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36 C.F.R. pt. 1190, app.).

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The City recognizes the ADA’s breadth of coverage, but argues

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that Plaintiff’s claim is precluded because no current regulation

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expressly addresses on-street parking.

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Congress implemented the ADA to provide “a clear and comprehensive

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national mandate for the elimination of discrimination against

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individuals with disabilities.”

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Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th Cir. 2002)

The court disagrees.

42 U.S.C. § 12101(b)(1); see also

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(holding that courts must construe the ADA broadly to effectively

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implement this mandate).

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to deny a public service to individuals with disabilities.

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U.S.C. § 12132.

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readily accessible to such individuals, see 28 C.F.R. § 35.150(a),

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whether or not a federal agency has created specific guidelines for

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a particular service.

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help public entities and courts determine compliance, but where

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none are on point, we fall back to the general statutory

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requirement, not out of its coverage.

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regulations change the analysis.

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“merely because a proposed new set of regulations will explicitly

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discuss the accessibility standards for a particular thing, does

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not mean that there were no obligations before.”

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Mot. at 10.)

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It is a violation of the statute itself
See 42

This means that all public services must be

In other words, detailed regulations can

Nor do the proposed

As Plaintiff properly explains,

The case law also supports this analysis.

(Pl.’s Opp’n to

Both parties

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address the Ninth Circuit’s decision in Barden v. City of

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Sacramento, 292 F.3d 1073 (9th Cir. 2002).

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maintenance of public sidewalks is subject to Title II, even though
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Barden held that

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no regulation “specifically address[ed] the accessibility of

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sidewalks.”

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the express regulatory requirement for curb ramps “would be

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meaningless if the sidewalks between the curb ramps were

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inaccessible.”

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the curb ramp requirement would be less meaningful if on-street

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parking next to the ramps were not accessible.

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important point, and end result in Barden, is that public entities

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must provide the reasonable access required by the ADA even in the

Id. at 1077.

Id.

In so holding, the court explained that

To some degree, the same might be said here:

But the more

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absence of a specific regulation.

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v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1369 (S.D. Fla.

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2001) (“[T]he lack of regulations for commercial, passenger vessels

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renders compliance with and application of Title III an arduous

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task.

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discrimination against persons with disabilities, it is a task,

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though, that can no longer be delayed.”

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quotation marks omitted)).3

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See also Ass’n for Disabled Ams.

In light of the ADA’s mandate for the elimination of

(internal citations and

Finally, the point is made clear by imagining the scenario -

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entirely possible here, at the motion to dismiss stage - where a

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city courthouse is surrounded entirely by on-street parking, with

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no other parking structure or vehicle access.

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with physical disabilities would lack reasonable access to a

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critical public service.

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Clearly, individuals

See Botosan v. Paul McNally Realty, 216

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On a side note, a district court has concluded in a wellreasoned decision that one ADA regulation, 28 C.F.R. pt. 36, app. A
§ 4.1.2(5)(a), may in fact apply to on-street parking under certain
circumstances. See Lang v. Crocker Park LLC, No. 09-CV-1412, 2010
WL 3326867 (N.D. Ohio Aug. 20, 2010) (“[T]here is no express
requirement to provide on-street parking in the [regulations].
However, if the Defendants are going to provide on-street parking
to the non-disabled, they may be required to provide disabled
parking as well.”).
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F.3d 827, 835 (9th Cir. 2000) (noting that another car may park

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right next to a non-disabled parking space, making it impossible to

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reenter the vehicle from a wheelchair).

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further developed in this case, the court cannot rule out this or

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other equally discriminatory possibilities.

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IV.

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Until the facts are

CONCLUSION
In sum, the broad language of the ADA requires public entities

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to ensure that all services, including on-street parking, are

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reasonably accessible to and usable by individuals with

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disabilities.

Plaintiff's Complaint alleges sufficient facts - in

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particular, the absence of any handicap-accessible on-street

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parking - to plausibly make out a claim for relief.

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therefore DENIES Defendant's Motion to Dismiss.

The court

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IT IS SO ORDERED.

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Dated: October 28, 2011
DEAN D. PREGERSON
United States District Judge

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