Ron Sarfaty et al v. City of Los Angeles et al

Filing 133

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Stephen V. Wilson. (See document for details) (mrgo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
CASE NO. 2:17-cv-03594-SVW-KS

RON SARFATY
vs.

Plaintiffs,

CITY OF LOS ANGELES

FINDING OF FACT AND
CONCLUSIONS OF LAW

Defendant.

INTRODUCTION
On July 22, 2020 and July 23, 2020, the Court held a bench trial in this action to
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 seq. (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
Sarfaty (“Plaintiff”) and the City submitted declarations containing their
witnesses’ direct testimony, as required by the Court’s Standing Order for non-jury
trials. The parties presented their witnesses at trial, at which time the Court
engaged in its own questioning of each witnesses and allowed subsequent crossexamination and re-direct questioning by the parties. Having carefully reviewed
and considered the evidence presented at trial, the Court issues the following

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findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure
52(a).

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
has also considered the relevant factors in Section 1.14 of the Manual of Model
Civil Jury Instructions for the District Courts of the Ninth Circuit (2017 Edition),
located at http://www3.ce9.uscourts.gov/juryinstructions/sites/default/files/WPD/Civil_Instructions_2018_9_0.pdf
FINDINGS OF FACT
1.

Plaintiff is unable to walk or stand independently as the result of a stroke.
He uses a wheelchair for mobility and a modified van equipped with a
power lift for transportation. Dkt. 87 at 2. At the time of the events that
precipitated this litigation, he used a side-deploying wheelchair lift that
deployed out of the passenger side of his van. Id. Currently, Plaintiff uses a
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. Id.

2.

In April 2015, the City altered its on-street public parking on Reseda
Boulevard as part of the City’s “Great Streets Initiative.” Plaintiff Trial Ex.
7 at 3, 13. The alterations included the installation of cycletracks and buffer
zones containing bollards, and the restriping/relocation of parking spaces
away from the curb. Id.; see also City Trial Ex. 4, 5, 6.

2

3.

The alteration to this portion of Reseda Boulevard was undertaken based
on the elevated rate of serious and fatal accidents that had occurred on this
stretch of Reseda. Dkt. 84 at 3; Dkt. 84-5 at 2-3. The Great Streets Project
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.
No portion of the information packet describing the Reseda Boulevard
project to residents discusses accessibility, references disabled individuals,
or depicts wheelchair use. See generally City Trial Ex. 5. A recurring
graphic in the informational packet distinguishes between the separated
bike lane, with the phrase “BIKE” below it, and the sidewalk, with the
phrase “WALK” below it. Id.

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
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
sidewalk. Id. at 4.

5.

The altered on-street parking provides 73 public parking spaces dispersed
over ten block faces. Plaintiff’s Ex. 7 at 13. None of the altered parking
spaces are marked or identified as reserved for use by individuals with
disabilities or are directly adjacent to an accessible route to reach the
sidewalk.

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6.

There is a signaled, mid-block crosswalk on the altered portion of Reseda
between Rayen and Nordhoff streets that has curb ramps on each end. The
rest of the altered portion of Reseda contains no mid-block curb ramps,
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.

7.

Given the position of the mid-block curb ramp approximately halfway
between Rayen and Nordhoff, this means that in most cases (with the
exception of the shorter distance between Rayen and Gresham, which is
only 356 feet), there are roughly 200 yards between accessible intersections
on the altered portion of Reseda Boulevard. See City Trial Ex. 4. The
parking spaces on the altered portion of Reseda Boulevard are not evenly
distributed, and in some cases cluster near the 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. Id.

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
exit directly onto the sidewalk using his side-deploying wheelchair lift and
proceed to his intended destination via the sidewalk.

9.

After the 2015 alterations to the on-street parking on Reseda Boulevard.
Plaintiff could no longer park curbside and exit his vehicle directly on to
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

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intersection with a curb ramp. Plaintiff was almost hit by a screaming
bicyclist while traveling in the bike lane, making him anxious and
uncomfortable and causing him to experience difficulty, distress and
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.

10.

On August 25, 2015, Plaintiff again visited Reseda Boulevard and
encountered the same problems with the on-street parking spaces described
above. Plaintiff testified that he has substantially curtailed his visits to
establishments in this area of Reseda Boulevard on the basis of these
experiences. The Court found Plaintiff’s testimony on his prior experiences
to be credible throughout the trial.

11.

Plaintiff wrote letters to the City’s Department of Street Maintenance1 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
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
handicapped persons.” He requests “an ETA when the streets will be
brought back to the safe way it was configured before this silliness” at the
end of each letter. See Plaintiff Trial Ex. 11, 12, 13. None of Plaintiff’s
letters request additional accessible parking on the altered portion of
Reseda Boulevard. Plaintiff never attempted to call the Department of
Street Maintenance, and never received a response to his letters.

1

Plaintiff’s 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.

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12.

Multiple City employees submitted unrebutted direct testimony
declarations that no records exist of any complaints made by Plaintiff. Dkt.
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
officer for the City during the relevant time period, testified that while
ADA complaints received by other departments should (as a general
policy) be forwarded to the City’s Department of Disability (“DOD”) to
determine whether accommodations can be made, in practice this does not
necessarily occur.

13.

Plaintiff and Kaufman had a phone call in September 2016, after Plaintiff’s
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
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
Boulevard. Kaufman also provided Plaintiff with contact information for
the Federal Highway Administration (“FHA”) and suggested he contact
them regarding his cycletrack complaint. Plaintiff later filed this lawsuit.

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CONCLUSIONS OF LAW

1.

The Court reaffirms its conclusions made on the record on July 22, 2020
before the beginning of the bench trial that Plaintiff’s 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
altered portion of Reseda Boulevard remains in the same configuration, and
a determination that it violates the ADA may still lead to injunctive relief
that will benefit Plaintiff. See Rosebrock v. Mathis, 745 F.3d 963, 971 (9th
Cir. 2014) (“A case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—‘when the issues presented are
no longer “live” or the parties lack a legally cognizable interest in the
outcome.’”)

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.
10-05782-CBM-MRW (C.D. Cal. Aug. 25, 2016) (the “Willits settlement”)
does not preclude Plaintiff’s 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
of the Willits settlement does not preclude Plaintiff’s claims, and (2) that
even if it did, the ‘identical factual predicate’ test would prevent the Willits
settlement from releasing these claims, because they are based on
accessibility issues arising from alteration of the City’s on-street parking
facilities, rather than accessing or travelling on the City’s pedestrian
facilities.” Dkt. 74 at 8.

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3.

The Court also reincorporates the relevant facts that are not disputed by the
parties and were addressed in the Court’s prior Order— “that the City is a
‘public entity’ for the purposes of Title II of the ADA, that Plaintiff Sarfaty
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.

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
entity like the City be accessible. In particular, the Ninth Circuit stated that
28 C.F.R. § 35.151(b)(1) “require[s] that all public on-street parking
facilities constructed or altered after the ADA's effective date be
accessible.” 766 F.3d at 1103.

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
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
by individuals with disabilities, if the alteration was commenced after
January 26, 1992.” Id. (emphasis added). There is no dispute that the
alteration of Reseda Boulevard was completed in April 2015.

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6.

The Court previously concluded that the installation of cycletracks and
movement of the preexisting parking spaces away from the curb on this
stretch of Reseda Boulevard constituted an alteration for purposes of 28
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.

7.

No technical specifications for on-street parking exist under the relevant
ADA standards. See 2010 ADA Standards for Accessible Design available
at
https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pd
f; see also 28 C.F.R. § 35.151(c)(3) (alterations after March 15, 2012 must
comply with the 2010 ADA Standards). However, in Fortyune Ninth
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
(1) in the absence of technical specifications, Title II’s program
accessibility standards (expressly referencing § 35.150(a) and §
35.151(a)(1) and (b)(1)) apply to a public entities’ on-street parking, and
(2) public entities “have a degree of flexibility” in achieving the program
accessibility requirements embodied in § 35.150 and § 35.151, and that
technical specifications for similar structures (like the accessible spaces for
parking lots addressed in the 2010 ADA Standards) provide a “template”
for public entities to “apply and to modify as needed to achieve

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

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 onstreet parking spaces on Reseda Boulevard meet the technical
specifications for accessible parking in the 2010 ADA Standards (because
no designated accessible parking is provided), the accessibility challenges
Plaintiff testified that he encountered during his use of these on-street
parking spaces do not specifically relate to any of the technical
requirements in the 2010 ADA Standards. Instead, the challenges he
describes arises solely from the broader layout of on-street parking on
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 §
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.

9.

Accordingly, the Court finds that broader program accessibility standard
embodied in § 35.151(b)(1), which requires that the altered portion of
Reseda Boulevard be “readily accessible” to individuals with disabilities is
the proper lens through which to evaluate Plaintiff’s claims. See, e.g.

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Kirola v. City & Cty. of San Francisco, 860 F.3d 1164, 1182 (9th Cir.
2017) (affirming district court analysis of program accessibility under
lower standard applicable via § 35.150(a)). The City’s argument that
“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
program accessibility. See Kirola, 860 F.3d at 1180-81 (finding that if the
relevant technical specifications relevant in that case did not apply, §
35.151 would still require the Court to analyze that “general standard” to
determine public entity ADA compliance); Fortyune, 766 F.3d at 1103
(describing § 35.151(b)(1) as creating a “general mandate of
accessibility”).

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
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
by a public sidewalk. Turning to the 2010 ADA Standards for guidance on
this issue, the Court notes that Section 502.3 of the 2010 ADA Standards
expressly requires that “Access aisles shall adjoin an accessible route.”
2010 ADA Standards for Accessible Design, available at
https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pd

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f. Similarly, Section 208.3.1 requires that accessible parking spaces be
located on the “shortest accessible route” from parking to an entrance. Id.
Based on this guidance, the Court concludes that whether the on-street
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.

11.

Second, the existence of a curb presents an additional challenge to
wheelchair-bound individuals that other individuals do not face, because
they cannot physically step up onto the sidewalk, unlike ambulatory
individuals.1 Therefore, when on-street parking spaces are uniformly
placed a substantial distance from the curb, to reach the sidewalk, an
ambulatory individual is required only to “cross” the bike lane to access the
sidewalk. In contrast, a wheelchair-bound individual must proceed in the
bike lane until they reach an accessible curb ramp.

12.

The parties do not dispute that at the intersections of the cross-streets in
this portion of Reseda Boulevard, there are accessible curb ramps (i.e. curb
ramps as mandated by § 35.151(i)) that are accessible to wheelchair-bound
individuals. Additionally, an accessible mid-block curb ramp exists
between Rayen Street and Nordhoff Street in the altered portion of Reseda.
Given the position of the mid-block curb ramp approximately halfway
between Rayen and Nordhoff, this means that in most cases (with the

1

While no evidence was presented on this point, the Court finds this fact to be subject to judicial notice under
Fed. R. Evid. 201(b)(1).

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exception of the shorter distance between Rayen and Gresham, which is
only 356 feet), there are roughly 200 yards between accessible
intersections. The parking spaces on the altered portion of Reseda
Boulevard are not evenly distributed, and in some cases cluster near the
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
that individuals with disabilities who utilize wheelchairs will frequently
have to travel more than 50 yards, and in some cases closer to 100 yards
before they reach an accessible curb ramp that permits them to exit the bike
lane and enter the sidewalk.

13.

There are a limited number of inactive driveways on this portion of Reseda
Boulevard, which create breaks in the curb. See Dkt. 89 at 2; Dkt. 85 at 7-8,
Plaintiff Trial Ex. 7 at 14. However, there is undisputed evidence in the
record that the slopes of all but one of these inactive driveways exceed
8.33%. Dkt. 85 at 7-8, Plaintiff Trial Ex. 7 at 14. This exceeds the
maximum slope permitted under Section 405.2 of the 2010 ADA
Standards.1 With the exception articulated in the footnote below, these
inactive driveways do not constitute an accessible route to reach the
sidewalk from on-street parking.2

1

The single inactive driveway with an ADA-compliant slope between Rayen and Gresham is adjacent to three
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
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.
2
The Court finds that applying the ADA’s fixed slope standards to disqualify these steeply sloped inactive
driveways in assessing the distance wheelchair-bound individuals must traverse to reach an accessible curb
ramp is consistent with Ninth Circuit precedent applying “feature-specific” standards to public entity facilities,

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14.

The Court concludes that because the on-street parking on this portion of
Reseda Boulevard requires wheelchair-bound individuals to roll in the bike
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.

15.

The Court found Plaintiff’s testimony regarding his past encounters and
continuing fear of cyclists hitting him in the bike lane to be credible. His
testimony was also corroborated by the exhibits depicting the width and
construction of the bike lanes— each provides a single, relatively narrow
bike lane moving in the direction of traffic, and the narrow striped portion
of the cycletracks surrounding each of the bollards is not wide enough to
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
the potential risk of a collision and possible harm. This constitutes a
significant accessibility concern for individuals like Plaintiff.

16.

The Ninth Circuit’s holding in Cohen v. City of Culver City, 754 F.3d 690
(9th Cir. 2014) also supports this conclusion. After concluding that the
“more exacting standards” of § 35.151 applied to an alleged ADA
violation, the Ninth Circuit found that “the existence of an arguably

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

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marginally longer alternative route” within approximately 20 yards of a
blocked curb ramp could not justify summary judgment on that plaintiff’s
claims under the ADA. Id. at 693, 699. Here, the City altered the on-street
parking on Reseda Boulevard for reasons unrelated to ADA compliance,
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
accessibility articulated in § 35.151.

17.

The Court also finds that the City’s alterations to Reseda Boulevard
particularly disadvantages wheelchair-bound individuals, because they
must frequently roll in the bike lane for a significant period of time and
avoid cyclists in order to reach the sidewalk.1 Ambulatory individuals do
not face these challenges because they merely need to cross the bike lane to
access the sidewalk. Title II of the ADA is plainly intended to redress
“unequal treatment in the administration of a wide range of public services,
programs, and activities . . .” Tennessee v. Lane, 541 U.S. 509, 525 (2004)
(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

1

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
was 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
ADA Standards. The advisory guidelines specifically note that “Wheelchair lifts typically are installed on the
passenger side of vans. Many drivers, especially those who operate vans, find it more difficult to back into
parking 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
van space.” Section 502.4 (emphasis added). The Court finds these portions of the 2010 ADA Standards relevant
in assessing whether the City’s decision to install cycletracks and move on-street parking substantially further
from the curb creates an accessibility challenge for individuals like Plaintiff.

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conclusion that the altered portion of Reseda Boulevard is not “readily
accessible” for purposes of 28 C.F.R. § 35.151(b)(1).

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
businesses should factor into the program accessibility requirements of
Title II that are specifically mandated for public entities like the City. As a
practical matter, this would create substantial uncertainty because different
kinds of establishments have different obligations under the ADA, and may
or may not be obligated to provide accessible off-street parking.
Determining whether the City has complied with Title II based on the thencurrent Title III compliance of the businesses currently operating on
Reseda Boulevard would inappropriately make provision of accessible
parking “contingent upon the cooperation of third persons.” Am. Council
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
189, 200 (2d Cir. 2014) (access “should not be contingent on the
happenstance that others are available to help”). Moreover, as Plaintiff
noted in his testimony, some off-street accessible parking on Reseda
Boulevard is not fully ADA-compliant, and to the limited extent it was
available during his visits, these parking spaces were often already in use
by other customers

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19.

Plaintiff’s expert witness Paul Bishop (“Bishop”) testified regarding
modifications to the on-street parking on the altered portion of Reseda
Boulevard. In particular, he identified specific locations on the altered
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
ramps at intersections. Bishop’s testimony established that relatively
minimal modifications at these locations would be feasible, because in
most cases the changes would amount to painting and signing these
locations to reserve them for disabled individuals, and moderate
adjustments to the size of the buffer zone and width of the cycletracks. In
one circumstance, these modifications require adding a curb ramp. See Dkt.
85 at 8-12.

20.

The Court finds that the inclusion of four disabled parking spaces at these
locations would adequately address the accessibility violations the Court
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
period of time they must roll in the bike lane in order to reach the sidewalk
from the on-street parking spaces.1 The Court also notes that Bishop’s

1

In its 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 onstreet parking create a unique challenge for wheelchair-bound individuals. Providing reserved parking at specific
locations that are in close proximity to curb ramps simply minimizes the negative impact of the City’s alterations
on these individuals.

17

recommendations are also consistent with guidance on integrating
accessible parking with cycletracks recommended by the Federal Highway
Administration in a report provided as an exhibit by the City. See City Trial
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).

21.

Public entities like the City are required to meet the “readily accessible”
standard with regard to program accessibility of altered facilities “to the
maximum extent feasible . . .” 28 C.F.R. § 35.151(b)(1). The court
interprets this language to place the burden on the City to show that the
changes proposed by Bishop are infeasible.

22.

The City has not shown that these modifications to the on-street parking
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
in a manner that would interfere with other state and federal regulations
regarding roadways slopes and safe drainage of water.

23.

The only other objection to this proposal raised by the City is general
testimony that community response to including accessible parking on
Reseda Boulevard was negative. Dkt. 84-5. The Court does not find that
this type of community reaction constitutes sufficiently probative evidence
of infeasibility, under these circumstances, to defeat feasibility given the

18

general purpose of the ADA, and the lack of caselaw supporting such an
inference. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,
944–45 (9th Cir. 2011 (“[the ADA’s] passage was premised on Congress's
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
spots does not make increasing accessibility infeasible in these
circumstances. See Bassilios v. City of Torrance, 166 F. Supp. 3d 1061,
1078 (C.D. Cal. 2015) (finding that community objections to installing a
disabled parking spot was not a “relevant consideration”).

24.

Because the Court finds that the public on-street parking on the altered
portion of Reseda Boulevard is not “readily accessible,” and that
modifications to the parking that would remedy this issue are not
infeasible, it finds that Plaintiff has established that the City has violated
Title II of the ADA.

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.

26.

In order to recover monetary damages under the ADA, individual
plaintiffs must prove that the public entity intentionally discriminated
against disabled individuals. Duvall v. County of Kitsap, 260 F.3d 1124,
1138 (9th Cir. 2001) (citing Ferguson v. City of Phoenix, 157 F.3d 668,

19

674 (9th Cir. 1998)). In Duvall, the Ninth Circuit affirmatively adopted
“deliberate indifference” as the standard for proving this intentional
discrimination. Id. at 1138. To establish deliberate indifference, a plaintiff
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.” Id. at 1139. The first element of the deliberate
indifference test—notice—is satisfied “[w]hen the plaintiff has alerted the
public entity to his need for accommodation (or where the need for
accommodation is obvious, or required by statute or regulation).” Id. at
1139. The second element of deliberate indifference is satisfied where “the
entity's failure to act ‘[is] a result of conduct that is more than negligent,
and involves an element of deliberateness.’” Updike v. Multnomah County.,
870 F.3d 939, 951 (9th Cir. 2017) (quoting Duvall, 260 F.3d at 1139); see
also Payan v. L.A. Cmty. Coll. Dist., 2018 WL 6164269, at *17 (C.D. Cal.
Oct. 16, 2018).
27.

The Court does not find that Plaintiff placed the City on notice of his
request for accommodation. First, there was no evidence or testimony in
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.
The Court does not find Plaintiff’s assertion that he mailed these letters to
the DSM sufficient to constitute notice of a request for accommodation.
Deliberate indifference requires intentional discrimination, and to the

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extent that Plaintiff’s requests were sent to a City department that does not
handle accessibility issues, the Court finds this to be insufficient to satisfy
the notice requirement, without any evidence that the City intentionally
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
also be applied to the notice requirement. See Duvall, 260 F.3d at 1138-39
(“bureaucratic slippage” not sufficient to constitute a deliberate failure to
act).
28.

Plaintiff did have a conversation with Angela Kaufman in her capacity as
an ADA compliance officer in September 2016. Plaintiff’s direct testimony
declaration states that he had a conversation with Kaufman where he made
a “request for accessible parking.” Dkt. 87 at 5. In his trial testimony,
Plaintiff did not testify that he made such an express request, just that he
expressed his general displeasure with the cycletracks and wanted them to
be removed by the City because he believed they violated the ADA. Ms.
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
finds that Plaintiff’s conversation expressing his displeasure and seeking
their removal is not sufficient notice to constitute a request for
accommodation in this factual context.

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29.

Even if the record contained sufficient evidence to show that Plaintiff
made a request for accommodation, the Court also finds that the City’s
conduct here does not meet the second prong of the deliberate indifference
standard. The testimony of Angela Kaufman (“Kaufman”) during the trial
and Plaintiff’s 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
testimony declaration of Luis Mata established that the City’s position at
this point in time, as determined by the Department of Disability (“DOD”)
responsible for addressing accessibility issues, was that complaints
regarding the on-street parking on Reseda Boulevard would be resolved
through the Willits settlement, based on his investigation into the complaint
filed by prior Plaintiff Gary Scherer. Dkt. 84-4 at 2. Finally, exhibits
provided by the City, the direct testimony declaration of Robert Sanchez,
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.

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
deploy wheelchairs from vehicles based on previous testing, and (3) the
DOD believed that the Willits settlement would address the type of
complaints raised by Plaintiff in his call with Kaufman.

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31.

The City was ultimately incorrect given the conclusions this Court reached
above. But the Court does not find that their conduct with regard to
Plaintiff can appropriately be described as “conduct that is more than
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
on-street parking in September 2014, shortly before the cycletracks were
installed. See Fortyune, 766 F.3d at 1103. There have been no subsequent
Ninth Circuit cases (and very limited district court precedent) applying
these broad program accessibility requirements to public on-street parking.
See, e.g. Bassilios, 166 F. Supp. 3d at 1072-1081. The Court was required
to hold a bench trial before it ultimately concluded that the on-street
parking on Reseda Boulevard violated the program accessibility
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
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
those technical specifications does not mean the City’s failure to act was
deliberate. Similarly, the City’s efforts to test the accessibility of the
cycletracks with wheelchair-bound individuals during the cycletrack

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installation process on Reseda strongly suggests that the City’s (incorrect)
belief that further alteration was not necessary was based on a good faith
belief that the cycletracks (as constructed) complied with the ADA.
33.

In these circumstances, the Court does not find that the City acted with
deliberate indifference or intentionally discriminated against Plaintiff.

34.

By violating the ADA, the City also violated Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; and California Government Code §
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
F.3d 1041, 1045 (9th Cir. 1999); Cal. Gov’t Code § 11135(b).

35.

The City is ordered to install four ADA-compliant accessible parking
spaces and make the modifications proposed by Bishop at the locations
specified in his expert report. See Dkt. 85 at 8-12.

36.

Plaintiff is instructed to submit a proposed Final Judgment in accord with
these Findings of Fact and Conclusions of Law within 21 days of the filing
of this Order.

IT IS SO ORDERED

Date: August 12, 2020
___________________________________
HON. STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE

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