Montoya et al v. City of San Diego et al

Filing 1

COMPLAINT with Jury Demand against Bird Rides, Inc., City of San Diego, DOES 1-100, Neutron Holdings, Inc., Razor USA LLC ( Filing fee $ 400 receipt number 0974-12072847.), filed by Rex Shirley, Aaron Gresson, Alex Montoya, Philip Pressel. (Attachments: #1 Civil Cover Sheet)The new case number is 3:19-cv-00054-JM-BGS. Judge Jeffrey T. Miller and Magistrate Judge Bernard G. Skomal are assigned to the case. (Souther, Matthew)(mme) (jao).

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.1 Page 1 of 30

1

2
3

4
5

Michael I. Neil, SBN 40057
Robert W. Frank, SBN 95392
Matthew R. Southe~ SBN 227910
Phillip E. Stephan, ;'.'SBN 283 818
NEIL, DYMOTT, FRANK, McCABE & HUDSON
A Professional Law Corporation
110 West A Street, Suite 1200
San Diego, CA 92101
p 619.238.1712
F 619.238.1562

6

[Additional counsel listed on following page]
7
Attome~s

8

for ALEX MONTOYA, REX SHIRLEY,
PHILIP PRESSEL and AARON GREESON
On Behalf of the Plaintiff Class

9
IO

IN THE UNITED STATES DISTRICT COURT

11

FOR THE SOUTHERN DISTRICT

12

13

CASE NO. - '19CV0054 JM BGS

ALEX MONTOYA, REX SHIRLEY,
PHILIP PRESSEL, and AARON
GRESSON, individually, and on behalf
of all others similarly situated,

CLASS ACTION COMPLAINT
FOR:

14

Plaintiffs,
15

1. 42 U.S.C. §12101 et. seq. [THE
AMERICANS WITH
DISABILITIES ACT];
2. 29 U.S.C. § 794 et seq. [Section 504
of the Rehabilitation Act;
3. California Civil Code §54 et seq.
fCalifornia Disabled Persons Actl;
4. California Civil Code §51 et seq.
Unruh Civil Rights Act];
5. California Government Code
§4450 et se~_;
6. California Government Code
§ 11135 et seq.

vs.
16

17
18
19

CITY OF SAN DIEGO, a public entity,
BIRD RIDES, INC., a Delaware
coworation, d/b/a BIRD; NEUTRON
HOLDINGS, INC., a Delaware
corJ?oration, d/b/a LIME; RAZOR USA,
LLC, a California corporation; and
DOES 1-100,

20

Defendants.
21
22

23
24
25
26
27

28
1
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.2 Page 2 of 30

IA

9

Ill

10

Ill

11

Ill

12

Ill

13

Ill

14

Ill

15

Ill

16

Ill

17

Ill

18

Ill

19

Ill

20

Ill

21

Ill

22

Ill

23

Ill

24

Ill

25

Ill

26

Ill

27

Ill

28

Ill
2
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.3 Page 3 of 30

1

COMPLAINT

2

I. INTRODUCTION
1.

3

This action challenges the failure of the City of San Diego and private

4

companies to maintain the accessibility of the City's public sidewalks, curb ramps,

5

crosswalks and transit stops for people with disabilities, in the face of an onslaught of

6

unregulated dockless scooters. Private scooter companies have been allowed to

7

appropriate the public commons for their own profit, regardless of the impact on the

8

City's residents. Persons with mobility impairments, including people who use

9

wheelchairs or walkers, and people with significant visual impairments are thereby

10

being denied their right to travel freely and safely on our public walkways.
2.

11

Without full use of the sidewalk and curb ramps at street intersections,

12

persons with mobility and/or visual impairments have significant barriers in crossing

13

from a pedestrian walkway to a street. This is exacerbated when the sidewalk itself is

14

full of obstructions and no longer able to be fully and freely used by people with

15

disabilities.

3.

16

When dockless scooters are left in the middle of the sidewalk and other

17

rights of way, at points of ingress and egress, they block off access to the public rights

18

of way; furthermore, as Defendants know, the dockless scooter riders often ride the

19

Scooters on the sidewalk, turning the sidewalk into a vehicle highway rather than a

20

space for safe pedestrian access and use.
4.

21

On July 26, 1990, Congress enacted the Americans With Disabilities Act

22

(ADA), ADA §§ 2 et seq. [42 U.S.C.A. §§ 12101 et seq.], establishing the most

23

important civil rights for persons with disabilities in our country's history, including the

24

right to have full and equal enjoyment of services, programs, or activities of a public

25

entity.

26

5.

Congress explicitly stated that the purpose of the ADA was to provide a

27

clear and comprehensive national mandate for the elimination of discrimination against

28

individuals with disabilities. 42 U.S.C. §1210l(b)(l)-(2). Congressional statutory
3
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.4 Page 4 of 30

1

findings include: "historically, society has tended to isolate and segregate individuals

2

with disabilities, and despite some improvements, such forms of discrimination against

3

individuals with disabilities continue to be a serious and pervasive social problem";

4

''discrimination against individuals with disabilities persists in such critical areas as

5

employment,

6

communication, recreation, institutionalization, health services, voting, and access to

7

public services"; "individuals with disabilities continually encounter various forms of

8

discrimination, including outright intentional exclusion, the discriminatory effects of

9

architectural, transportation, and communication barriers"; and, "the Nation's proper

1O

goals regarding individuals with disabilities are to assure equality of opportunity, full

11

participation, independent living, and economic self-sufficiency for such individuals."

12

42 U.S.C. § 12101.

13

6.

housing,

public

accommodations,

education,

transportation,

In the House Report accompanying the ADA, Congress expressly noted

14

that the "employment, transportation, and public accommodation sections of [the ADA]

15

would be meaningless if people who use wheelchairs were not afforded the opportunity

16

to travel on and between the streets." See H.R. Rep. No. 101-485(11), at 84, reprinted in

17

1990 U.S.C.C.A.N. 303, 367.

18

7.

Congress gave public entities, including state and local governments, 18

19

months to implement the ADA. By January 26, 1992, the effective date of the ADA, all

20

public entities had to comply with the statutory and regulatory provisions of the ADA.

21

8.

Nevertheless, instead of complying with the ADA, Defendants have failed

22

to maintain and respect the public sidewalks of the City of San Diego in a way that

23

allows for disabled residents to enjoy unencumbered access. People with disabilities

24

who wish to travel in the City using the City's walkways are being forced to either put

25

their physical safety at risk or just stay home. This is not a choice that they should have

26

to make.

27

9.

28

Alex Montoya, Rex Shirley, Philip Pressel, and Aaron Greeson ("Lead

Plaintiffs"), as individuals and on behalf of all other similarly situated (the "Putative
4
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.5 Page 5 of 30

1

Class") hereby move against the City of San Diego (the "Municipal Defendant"), and

2

Neutron Holdings, Inc. a Delaware corporation doing business as Lime ("Lime"), Razor

3

USA LLC, a California corporation ("Razor") and Bird Rides, Inc., a Delaware

4

Corporation, Inc. d/b/a Bird ("Bird")( collectively, the "Scooter Defendants").

II. VENUE AND JURISDICTION

5
6

10.

The claims alleged herein arise under the Americans with Disabilities Act

7

(42 U.S.C. §§ 12131 et seq.), and Section 504 of the Rehabilitation Act of 1973 (29

8

U.S.C. §794 et seq.), such that the jurisdiction of this Court is invoked pursuant to 28

9

U.S.C. §§ 1331 and 1343. Through the same actions and omissions that form the basis

1O

of Plaintiffs' federal claims, Defendants have also violated Plaintiffs' rights under state

11

law, over which this Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

12

This Court has jurisdiction over Plaintiffs' claims for declaratory and injunctive relief

13

pursuant to 28 U.S.C. §§2201 and 2202 and Rule 65 of the Federal Rules of Civil

14

Procedure.

15

11.

Venue over Plaintiffs' claims is proper m the Southern District of

16

California because the Municipal Defendant resides in the Southern District of

17

California within the meaning of 28 U.S.C. § 1391, and because the acts, events, and

18

om1ss10ns givmg rise to Plaintiffs' claims occuned in the Southern District of

19

California.

III. PARTIES

20

21

12.

Alex Montoya is a San Diego, California resident. Alex Montoya is

22

congenital triple amputee - a birth defect rendered Mr. Montoya without arms and one

23

leg since birth, and Mr. Montoya wears prosthetics on both arms and his right leg every

24

day. Mr. Montoya is mobility impaired. He does not drive, and for that reason, chose to

25

live and work in the East Village neighbourhood of San Diego, where he could access

26

several places as a pedestrian. Because of his prosthetics, Mr. Montoya's reaction time

27

is slower than an average, non-disabled person - yet, every single day, Mr. Montoya

28

finds himself dodging scooters on sidewalks and street crossings, coming from all
5
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.6 Page 6 of 30

1

directions and rapid rates of speed without warning. As a result of the proliferation of

2

dockless scooters on public sidewalks, Mr. Montoya now will avoid walking

3

somewhere if he can, as he does not feel safe walking. Mr. Montoya, as well as his

4

special-needs brother, have nearly tripped over discarded scooters, as the scooters are

5

strewn all over the sidewalks. Plaintiff Montoya is a "qualified person with a disability"

6

and/or a person with a "disability" within the meaning of all applicable statutes and

7

regulations including 42 U.S.C. § 12131(2), 28 C.F.R. § 35.104; 28 C.F.R. § 36.104;

8

29 U.S.C. § 705(2)(B), and California Government Code§ 12926.
13.

9

Rex Shirley is a San Diego, California resident, in the neighbourhood of

10

Mission Beach. Rex Shirley has been diagnosed with Parkinson's disease, which has

11

progressively advanced over several years. Mr. Shirley requires the use of a mobility

12

scooter for his transportation. In October of 2018, Mr. Shirley was nearly hit by an

13

electric scooter on the Mission Beach Boardwalk. Mr. Shirley finds dockless electric

14

scooters left on their sides on the alleys and streets of Mission Beach, near his horne,

15

and those scooters block access and impede Mr. Shirley's ability to safely travel the

16

streets and sidewalks of Mission Beach. Mr. Shirley has to drive his mobility scooter

17

around the dockless scooters to get places. Mr. Shirley fears further close encounters

18

with the dockless scooters, and cannot use the sidewalks and public rights of way as he

19

would please because of blocked access and the inability to avoid electric scooters that

20

he cannot hear corning or easily evade. As a result of these issues created by dockless

21

electric scooters, Mr. Shirley goes out less, avoids the Mission Beach Boardwalk and

22

strand areas near where he lives, and finds his local travel impeded when he does go

23

out. Mr. Shirley also finds it difficult to utilize the public rights of way to walk his dog.

24

Mr. Shirley is a "qualified person with a disability" and/or a person with a "disability"

25

within the meaning of all applicable federal and state statutes and regulations including

26

42 U.S.C. § 12131(2), 28 C.F.R. § 35.104; 28 C.F.R. § 36.104; 29 U.S.C. § 705(2)(B),

27

and California Government Code§ 12926.

28

///
6
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.7 Page 7 of 30

1

14.

Philip Pressel is a San Diego, California resident, living in downtown San

2

Diego. Mr. Pressel has lost the use of his left leg and is an amputee, and now requires

3

the use of an electric mobility scooter unless walking very short distances, usually no

4

more than one block or so. Mr. Pressel is also immunosuppressed because of an organ

5

transplant. Mr. Pressel chose to live in downtown because of the ability to easily access

6

numerous places. Mr. Pressel's wife has had to move scooters out of the way for Mr.

7

Pressel to access the pedestrian walkways. Mr. Pressel has had numerous occasions

8

where he could not see a discarded scooter laying on the ground, and has nearly collided

9

with those grounded scooters. Plaintiff Pressel is a "qualified person with a disability"

1O

and/or a person with a "disability" within the meaning of all applicable federal and state

11

statutes and regulations including 42 U.S.C. § 12131(2), 28 C.F.R. § 35.104; 28 C.F.R.

12

§ 36.104; 29 U.S.C. § 705(2)(B), and California Government Code§ 12926.

13

15.

Aaron Greeson is a Spring Valley, California resident. Mr. Greeson has

14

been blind for the past ten years and several times per week goes to the Blind

15

Community Center of San Diego, located at 1805 Upas Street, San Diego, CA 92101.

16

Mr. Greeson has had several incidents where he has nearly been hit by or has collided

17

with electric scooters, as he cannot see them coming and cannot see the scooters laying

18

down on the sidewalk when walking. Mr. Greeson now will only walk near the Blind

19

Community Center of San Diego ifhe has somebody to walk wlth, to avoid discarded

20

scooters he cannot see and active scooters he cannot easily evade. Plaintiff Greeson is

21

a "qualified person with a disability" and/or a person with a "disability" within the

22

meaning of all applicable federal and state statutes and regulations incl~ding 42 U.S.C.

23

§ 12131(2), 28 C.F.R. § 35.104; 28 C.F.R. § 36.104; 29 U.S.C. § 705(2)(B), and

24

California Government Code§ 12926.

25

16.

The putative class consists of all persons with mobility and/or visual

26

impairments who have been denied equal access to city sidewalks, streets, crosswalks,

27

and transit stops as a result of the Defendants' policies and practices with regard to

28

dockless scooters that impede and deny disability access.
7
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.8 Page 8 of 30

17.

1
2

Hereafter, references to Plaintiffs shall be deemed to include Lead

Plaintiffs and each member of the Putative Class, unless otherwise indicated.
18.

3

Defendant Bird Rides, Inc. dlbla BIRD ("Bird") is a for-profit corporation

4

which rents Bird Scooters (defined below) to Bird Customers (defined below) through

5

the Bird App (defined below). Bird is a Delaware corporation, with its principal office

6

located at 406 Broadway, #369, Santa Monica, California 90401.
19.

7

Defendant Neutron Holdings, Inc. d/b/a LIME ("Lime") is a for-profit

8

corporation which rents Lime Scooters (defined below) to Lime Customers (defined

9

below) through the Lime App (defined below). Lime is a Delaware corporation, with

10

its principal office located at 66 Bovet Rd, Suite 320, San Mateo, California 94402.
20.

11

Defendant Razor USA LLC ("Razor") is a for-profit corporation which

12

rents Razor Scooters to Razor Customers through the Razor App. Razor USA LLC is a

13

California corporation, with its principal office located at 12723 166th Street, Cerritos,

14

California.
21.

15

Defendant City of San Diego is a public entity within the meaning of Title

16

II of the Americans with Disabilities Act (the "ADA") and on information and belief,

17

has received federal financial assistance within the meaning of Section 504 of the

18

Rehabilitation Act, 29 U.S.C. §794, et seq. (the "Rehabilitation Act") and state financial

19

assistance within the meaning of Government Code 11135. Defendant City of San

20

Diego has received federal and state financial assistance sufficient to invoke the

21

coverage of Section 504 of the Rehabilitation Act and California Government Code

22

Section 11135.

23

22.

Defendant City of San Diego is a local government entity with the

24

responsibility of providing Plaintiffs access to its public facilities, programs, services

25

and activities. Defendant City of San Diego is responsible for maintaining and

26

regulating the system of sidewalks, crosswalks, transit stops, curb ramps, pedestrian

27

crossings and other walkways within the City of San Diego.

28

Ill
8
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.9 Page 9 of 30

1

2

IV. FACTUAL ALLEGATIONS
23.

The City of San Diego has failed to adequately maintain the system of

3

sidewalks, crosswalks, curb ramps, transit stops, pedestrian crossings and other

4

walkways, by allowing dockless scooters used primarily for recreational purposes to

5

proliferate unchecked throughout San Diego and to block safe and equal access for

6

people with disabilities who live in or visit the City. Defendant City of San Diego has

7

thereby denied Plaintiffs the benefits of the City's services, programs, and activities

8

based on their disabilities.

9

24.

The Scooter Defendants have used and appropriated varying portions of

1O

the City's public sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings

11

and walkways with impunity for their own private profit - effectively turning them into

12

their private retail stores, showrooms, highways, and storage facilities -in abject

13

disregard for the safety and access rights of San Diego's residents or visitors with

14

disabilities.

15

25.

Bird rents electric scooters ("Bird Scooters") to its customers ("Bird

16

Customers") through a mobile application (the "Bird App"). Travis Vanderzanden,

17

Bird's CEO, stated on or about October 9, 2018 that"[w]e don't go to New York because

18

it's technically illegal to use a scooter at the state level" and that "[w]here there's no

19

laws, that's where we go in." See "Bird CEO: 'The Places Where There Are No Laws,

20

That's Where We Go In"', Fortune, at <http://fortune.com/2018/10/09/bird-ceo-

21

scooters-laws/>, last accessed January 5, 2019 at 11:22 A.M.

22

23
24

26.

Razor also rents electric scooters ("Razor Scooters") to its customers

through a mobile application ("Razor App").
27.

Lime also rents electric scooters ("Lime Scooters", together with Bird

25

Scooters and Razor Scooters, hereinafter, collectively, "Scooters") to its customers

26

("Lime Customers", together with Bird Customers and Razor Customers, hereinafter,

27

collectively, "Scooter Customers") through a mobile application (the "Lime App",

28
9
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.10 Page 10 of 30

1

together with the Bird App and the Razor App, hereinafter, collectively, "Scooter

2

Apps").
28.

3

Scooters present obstacles and block full access and use of the sidewalk

4

when left on the ground. Across the City of San Diego, idle scooters clog the system of

5

sidewalks, crosswalks, curb ramps, transit stops, pedestrian crossings and other

6

walkways.
29.

7

Perhaps even more dangerous, Scooter Defendants enable or recklessly

8

allow Scooter Customers to drive Scooters at speeds much faster than the speed of foot

9

traffic through the system of sidewalks, crosswalks, curb ramps, transit stops, pedestrian

1O

crossings and other walkways, despite the California Vehicle Code's prohibition against

11

operation of a motorized scooter upon the sidewalks. Effectively, the practice turns the

12

systems of sidewalks into a Scooter highway.
30.

13

Once a Scooter Customer is done using the Scooter, Scooter Defendants

14

permit and/or recklessly enable the Scooter Customers to leave the Scooters anywhere

15

the user may see fit, as part of their "dockless" business model-typically, idle Scooters

16

end up on public property in the system of sidewalks, crosswalks, transit stops, curb

17

ramps, pedestrian crossings and other walkways, either on the ground, parked upright,

18

or left resting sideways blocking portions of the systems of sidewalks and rights of way.

19

Groups of Scooters may be discarded in close proximity, causing a blockade and

20

diminishing full use of the sidewalks for pedestrians.
31.

21

This "dockless" business practice violates San Diego Municipal Code

22

§129.0702(a)(2), which states that "no object (e.g. structure, basketball hoop, etc.) is to

23

be placed in the public right of way". Yet, the City, while vigorously enforcing this

24

provision against homeless individuals - citing and arresting them for placing sleeping

25

bags, shopping carts and other personal belongings on the ground - has intentionally or

26

recklessly overlooked the egregious actions of the Scooter Defendants and their severe

27

negative impact on disability access.

28

///

10
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.11 Page 11 of 30

1

32.

To continue appropriating and re-purposing the City of San Diego's

2

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings, the Scooter

3

Defendants hire independent contractors to tend to any Scooters with any kind of

4

maintenance need, including battery exhaustion, before returning the Scooters to the

5

system of public sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings

6

and other walkways.

7

33.

Scooters cause barriers in paths of travel when they are operated. Scooters

8

are operated on the system of sidewalks, crosswalks, transit stops, curb ramps,

9

pedestrian crossings and other walkways. The Scooters are motor powered, propelling

10

them at speeds around twenty (20) miles per hour, or more. Defendants do not require

11

any training or education for people to ride Scooters. The combination of high relative

12

speeds, compared to pedestrians, and lack of restrictions regarding the operator, creates

13

hazardous conditions which causes Lead Plaintiffs, and others in the Putative Class,

14

difficulty, frustration, and risk of serious physical harm. Lead Plaintiffs, should they

15

wager trying to access the benefits of the system of sidewalks, crosswalks, transit stops,

16

curb ramps, pedestrian crossings and other walkways, do so in a state ofhypervigilance

17

and stress as the concern of being struck and possibly injured by a wayward scooter

18

persists.

19

34.

Scooter Defendants hinder and inhibit Plaintiffs from using the system of

20

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

21

walkways, and have actually caused Plaintiffs to use the sidewalks less often. As in-use

22

Scooters speed by and deny safe, equal and full access to the sidewalks, and as idle

23

Scooters occupy, partition, and block the sidewalks and other pedestrian rights of way,

24

the sidewalk has become inaccessible, dangerous, and much more difficult to trust as a

25

walkway. As a result of the difficulty and frustration with the experience of attempting

26

to use the sidewalks and other pedestrian rights of way and fear of injury, Plaintiffs are

27

disheartened and deterred from using the system of sidewalks, crosswalks, transit stops,

28

curb ramps, pedestrian crossings and other walkways.
11
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.12 Page 12 of 30

1

35.

The Scooter Defendants' burgeoning proliferation and uncurbed growth

2

comes at the detriment of the rights of all disabled persons with mobility and/or visual

3

impairments who are residents and visitors of the City of San Diego, causing Plaintiffs

4

injury and severe anxiety, diminishing their comfort and discriminating against them

5

based on their disabilities by denying them access to and safe use of public walkways

6

and other essential public services, resulting in isolation in their homes and deterioration

7

in Plaintiffs' quality of life.

8

36.

The Municipal Defendant is responsible for maintaining the system of

9

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

1O

walkways, which constitute an essential government program, service, and activity for

11

residents and visitors of the City of San Diego.

12

37.

The Municipal

Defendant

is

responsible

for providing

public

13

transportation for the residents and visitors to the City of San Diego, which constitutes

14

an essential government program, service and activity for residents and visitors of the

15

City of San Diego.

16

38.

The Municipal Defendant has further failed to maintain the system of

17

sidewalks and rights of way in a fashion that ensures that access is not only assured to

18

all residents and visitors with disabilities, but also that allows residents and visitors with

19

disabilities to enjoy the full and equal benefit of the sidewalks and pedestrian rights of

20

way. Notably, the City of San Diego has failed to develop an adequate number of

21

alternative lanes that are not on the sidewalk (i.e., bike lanes) that might provide for a

22

lawful and proper use of Scooters.

23

39.

Despite knowledge of the California Vehicle Code, the Scooter Defendants

24

chose to carry out its business in the City of San Diego by appropriating public spaces

25

and have allowed and continue to allow use of the Scooters on the City's system of

26

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

27

walkways, declining to employ geo-fencing or other available mechanisms to ensure

28

that Scooters are used or reasonably maintained in a way that ensures full and equal
12
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.13 Page 13 of 30

1

access for people with disabilities to the system of sidewalks, crosswalks, transit stops,

2

curb ramps, pedestrian crossings and other walkways.

3

40.

The combination of the City of San Diego's failure to maintain the system

4

of sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

5

walkways in compliance with the needs of disabled individuals, and the Scooter

6

Defendants' knowing and reckless disregard for the need to maintain full and equal

7

access to public walkways for people with disabilities, results in Plaintiffs suffering

8

disproportionate harm based on their disabilities. The City of San Diego's system of

9

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

10

walkways is no longer readily accessible to and usable by persons with mobility and/or

11

visual disabilities due to the pervasive, unregulated, and ever-growing presence of

12

Scooters that create physical access barriers along the path of travel on the City's public

13

walkways.

14

41.

Lead Plaintiffs and other persons with mobility or visual impairments must

15

roll the dice every time they choose to use the system of sidewalks and other pedestrian

16

rights of way, as they gamble as to whether the system of sidewalks, crosswalks, transit

17

stops, curb ramps, pedestrian crossings and other walkways might be unfettered or

18

instead that Plaintiffs might be blocked or themselves placed in danger by encountering

19

Scooters strewn along their path. These obstructions deny people with disabilities

20

access to the City of San Diego's system of sidewalks, crosswalks, transit stops, curb

21

ramps, pedestrian crossings and other walkways and strip them of their freedom and

22

their right to safely use the public sidewalk in the same fashion and with the same

23

benefit as enjoyed by those without disabilities.

24

42.

Lead Plaintiffs and class members have mobility and/or visual

25

impairments. Lead Plaintiffs and class members have encountered Scooters strewn

26

across, blocking, and/or being driven upon the system of public sidewalks, crosswalks,

27

transit stops, curb ramps, pedestrian crossings and other walkways in the City of San

28

Diego, denying them full and equal access based on disability, and, causing Plaintiffs
13
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.14 Page 14 of 30

1

difficulty, frustration and embarrassment, and placing them in danger of injury or death.

2

Plaintiffs continue to be deterred from leaving their homes and their places of business

3

since the invasion of these Scooters onto the streets of the City of San Diego.

4

43.

The maintenance of an accessible system of sidewalks, crosswalks, transit

5

stops, curb ramps, pedestrian crossings and other walkways for people with disabilities

6

go to the heart of the purpose of the ADA and other disability rights laws, and is

7

essential for full integration into the community. The Scooter Defendants' private

8

appropriation and exploitation of varying portions of public sidewalks, crosswalks,

9

transit stops, curb ramps, pedestrian crossings and other walkways turning them into

1O

inaccessible places of public accommodation for their business use - and the Municipal

11

Defendant's failure to ensure that the system of public walkways is kept accessible to

12

persons with mobility or visual impairments free of Scooter obstructions - discriminates

13

based on disability in violation of multiple federal and state disability rights laws. This

14

lawsuit seeks to ensure fair, full, and equal access to the system of sidewalks,

15

crosswalks, transit stops, curb ramps, pedestrian crossings and other walkways for all

16

residents and visitors with disabilities in the City of San Diego.

17

44.

Plaintiffs thus bring this action to, among other things, remedy violations

18

of Title II of the ADA, 42 U.S.C. §12131, et seq., and its accompanying regulations,

19

Title III of the ADA, 42 U.S.C.§ 12182, et seq. and its accompanying regulations; the

20

Rehabilitation Act and its accompanying regulations, as well as analogous state statutes

21

including California Government Code §11135, California Civil Code §54, et seq.,

22

California Government Code §4450, and California Civil Code §51, et seq. Plaintiffs

23

seek declaratory and injunctive relief pursuant to the above, as well as an award of

24

attorneys' fees and costs under applicable law. Plaintiffs also seek statutory damages

25

under California law.

V. CLASS ACTION ALLEGATIONS

26
27
28

45.

The Lead Plaintiffs bring this action individually, and on behalf of all

persons with disabilities with mobility or visual impairments who have been denied
14
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.15 Page 15 of 30

1

access to or full enjoyment of the system of sidewalks, crosswalks, transit stops, curb

2

ramps, pedestrian crossings and other walkways in the City of San Diego because of

3

their disabilities.

4

46.

Each member of the Putative Class is a "qualified person with a disability"

5

and/or a person with a "disability" within the meaning of all applicable federal and state

6

statutes and regulations including 42 U.S.C. § 12131(2), 28 C.F.R. § 35.104; 28 C.F.R.

7

§ 36.104; 29 U.S.C. § 705(2)(B), and California Government Code § 12926. The

8

persons in the Putative Class are so numerous that the j oinder of all such persons is

9

impracticable and that the disposition of their claims in a class action rather than in

1O individual actions will benefit the parties and the Court. The Putative Class consists of
11

tens of thousands of persons with disabilities of mobility or visual impairment that

12

reside in or regularly visit the City of San Diego.
47.

13

Lead Plaintiffs are informed, believe, and thereon allege that the

14

Defendants' policies and procedures violate the ADA, the Rehabilitation Act, and

15

analogous state statues with regard to the system of sidewalks, crosswalks, curb ramps,

16

pedestrian crossings and other walkways and disability access.
48.

17

Lead Plaintiffs are informed, believe, and thereon allege that Defendants

18

have not adopted and do not enforce appropriate policies to prevent discrimination

19

against persons with disabilities and to ensure equal access to programs, services and

20

activities and places of public accommodation for persons with disabilities.
49.

21

The violations of the ADA, the Rehabilitation Act and related California

22

statutes set forth in detail have injured all members of the Putative Class, violating their

23

rights.
50.

24

Defendants acted or refused to act on grounds generally applicable to the

25

Putative Class, thereby making appropriate final injunctive or declaratory relief with

26

respect to the class as a whole appropriate.

27

Ill

28

Ill
15
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.16 Page 16 of 30

1

51.

The claims of the Lead Plaintiffs are typical of the Putative Class that they

2

arise from the same course of conduct engaged in by Defendants. The relief sought

3

herein will benefit all class members alike.

4

52.

Lead Plaintiffs will fairly and adequately represent the interests of the

5

class. Lead Plaintiffs have no interests adverse to the interests of other members of the

6

class and have retained counsel that is competent and experienced in litigation complex

7

class actions, including disability rights cases.

8
9

53.

With regard to the Putative Class, the requirements of Rule of the Federal

Rules of Civil Procedure are satisfied as such:
a.

1O

The class is so numerous that it would be impractical to bring all
class members before the Court;

11
12

b.

There are questions of law and fact which are common to the class;

13

c.

The Lead Plaintiffs' claims are typical of the claims of the class;

14

d.

The Lead Plaintiffs will fairly and adequately represent common

15

class interests and are represented by counsel who are experienced

16

in class actions and the disability rights issues in this case.

17

e.

18

generally applicable to the class; and,

19

f.

20
21
22
23

Defendants have acted or generally refused to act on grounds

The common questions of law and fact which are common to the
class predominate over individual questions.

54.

The common questions of law and fact, shared by all class members,

include:

a.

Whether the Municipal Defendant is violating Title II of the ADA,

24

42 U.S.C. § 12131 et seq., by depriving persons with disabilities

25

access to programs, services and activities of the City of San Diego,

26

and otherwise discriminating against persons with disabilities, as set

27

forth above;

28
16
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.17 Page 17 of 30

1

b.

Whether the Municipal Defendant is violating Section 504 of the

2

Rehabilitation Act, 29 U.S.C. § 794 et seq., by depriving persons

3

with disabilities access to programs, services and activities of the

4

City of San Diego, and otherwise discriminating against persons

5

with disabilities, as set forth above;

6

c.

Whether the Scooter Defendants are violating Title III of the ADA,

7

42 U.S.C. §12182 et seq. by discriminating against persons with

8

disabilities in a place of public accommodation.

9

d.

Whether the Defendants are violating California Government Code

10

Section 1l135(a), which prohibits denial of benefits to persons with

11

disabilities of any program or activity that is funded directly by the

12

state or receives any financial assistance from the state;

13

e.

seq., by depriving persons with disabilities to full and equal access;

14

f.

15
16

Whether the Defendants are violating California Government Code

§4450; and,
g.

17

18

Whether the Defendants are violating California Civil Code §54 et

Whether the Defendants are violating California Civil Code §51 et

seq.

19

VI. FIRST CAUSE OF ACTION

20

The Americans with Disabilities Act - Title II

21

(Against Municipal Defendant)

22
23
24

55.

Plaintiffs incorporate by reference each and every allegation contained in

the foregoing paragraphs.
56.

Congress enacted the ADA upon finding, among other things, that "society

25

has tended to isolate and segregate individuals with disabilities" and that such forms of

26

discrimination continue to be a "serious and pervasive social problem." 42 U.S.C. §

27

12101 (a)(2).

28
17
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.18 Page 18 of 30

1

57.

In response to these findings, Congress explicitly stated that the purpose

2

of the ADA is to provide "a clear and comprehensive national mandate for the

3

elimination of discrimination against individuals with disabilities" and "clear, strong,

4

consistent, enforceable standards addressing discrimination against individuals with

5

disabilities." 42 U.S.C. §12101(b)(l)-(2).

6

58.

Title II of the ADA provides in relevant part: "[N]o qualified individual

7

with a disability shall, by reason of such disability, be excluded from participation in or

8

be denied the benefits of the services, programs, or activities of a public entity, or be

9

subjected to discrimination by any such entity." 42 U.S.C. § 12132.

10

59.

At all times relevant to this action, the Municipal Defendant was a "public

11

entity" within the meaning of Title II of the ADA and provided and provides a program,

12

service or activity to the general public.

13

60.

At all times relevant to this action, Plaintiffs were qualified individuals

14

with disabilities within the meaning of Title II of the ADA and met the essential

15

eligibility requirements for the receipt of the services, programs, or activities of the City

16

of San Diego. 42 U.S.C §12131.

17

61.

Municipal Defendant is mandated to operate each program, service, or

18

activity "so that, when, viewed in its entirety, it is readily accessible to and useable by

19

individuals with disabilities." 28 C.F.R. § 35.150; see also 28 C.F.R. §§ 35.149 &

20

35.151. The system of sidewalks, crosswalks, transit stops, curb ramps, pedestrian

21

crossings and other walkways themselves constitute an essential public service,

22

program, or activity under Title II of the ADA. 28 C.F.R. § 35.104; see Barden v. City

23

ofSacramento, 292 F.3d 1073 (2002).

24

62.

The regulations implementing Title II of the ADA provide that a public

25

entity must maintain the features of all facilities required to be accessible by the ADA.

26

28 C.F.R. § 35.133. Facilities required to be accessible include roads, walks and

27

passageways. 28 C.F.R. § 1035.104.

28

18
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.19 Page 19 of 30

1

63.

Plaintiffs are informed, believe and thereon allege that the system of

2

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

3

walkways are not fully, equally and safely accessible to Plaintiffs when viewed in their

4

entirety.

5

64.

Plaintiffs are informed, believe and thereon allege that the Municipal

6

Defendant violated and continues to violate the ADA by failing to ensure that the system

7

of sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and other

8

walkways are kept free of the Scooter obstructions and thereby deny Plaintiffs due to

9

their disabilities the benefits of the system of sidewalks, crosswalks, transit stops, curb

1O
11

ramps, pedestrian crossings and other walkways.
65.

Plaintiffs are informed, believe and thereon allege that the Municipal

12

Defendant failed and continues to fail to adopt, implement or enforce ordinances or

13

other regulations necessary to ensure that the system of sidewalks, crosswalks, transit

14

stops, curb ramps, pedestrian crossings and other walkways are kept free of the Scooter

15

obstructions.

16

66.

Plaintiffs are informed, believe and thereon allege that the Municipal

17

Defendant and their agents and employees have and continue to violate the ADA by

18

failing to timely respond to and remedy complaints about the said barriers through their

19

policies and practices with regard the system of sidewalks, crosswalks, transit stops,

20

curb ramps, pedestrian crossings and other walkways thereby denying disability access.

21

67.

Plaintiffs are informed, believe and thereon allege that the Municipal

22

Defendant committed the acts and omissions alleged herein with intent and/or reckless

23

disregard of Plaintiffs' rights.

24

68.

As a direct and proximate result of the aforementioned acts, Plaintiffs have

25

suffered, and continue to suffer humiliation, hardship and anxiety, due to Defendants'

26

failure to address accommodations, modifications, services and access required for

27

Plaintiffs' disabilities.

28
19
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.20 Page 20 of 30

1

69.

Municipal Defendant's discriminatory conduct is ongoing, and causing

2

continuing harm. Plaintiffs have no adequate remedy at law and are therefore entitled

3

to declaratory and injunctive relief pursuant to 42 U.S.C. § 12133.

4
5

70.

Plaintiffs are further entitled to reasonable attorneys' fees and costs

incurred in bringing this action.

6

VII. SECOND CAUSE OF ACTION

7

(The Rehabilitation Act)

8

(Against Municipal Defendant)

9

71.

Plaintiffs incorporate by reference each and every allegation contained in

1O the foregoing paragraphs.
11

72.

Section 504 of the Rehabilitation Act of 1973 provides in relevant part:

12

"[N]o otherwise qualified person with a disability ... shall, solely by reason of her or his

13

disability, be excluded from the participation in, be denied the benefits of, or be

14

subjected to discrimination under any program or activity receiving federal financial

15

assistance ... " 29 U.S.C. § 794.

16

73.

Plaintiffs are otherwise qualified to participate in the services, programs,

17

or activities that are provided to individuals in the City of San Diego. See 29 U.S.C. §

18

794(b).

19

74.

The Municipal Defendant is a direct

recipien~

of federal financial

20

assistance sufficient to invoke the coverage of Section 504 of the Rehabilitation Act and

21

have received such federal assistance at all times relevant to the claims asserted in this

22

Complaint.

23

75.

Plaintiffs are informed, believe and thereon allege that the Municipal

24

Defendant and their agents and employees have violated and continue to violate the

25

Rehabilitation Act and the regulations promulgated thereunder by excluding Plaintiffs

26

from participation in, denying Plaintiffs the benefits of, and subjecting Plaintiffs to

27

discrimination in the benefits and services of the system of sidewalks, crosswalks,

28
20
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.21 Page 21 of 30

1

transit stops, curb ramps, pedestrian crossings and other walkways for the reasons set

2

forth above, based solely by reason of their disability.

3

76.

Plaintiffs are informed, believe and thereon alleges that the Municipal

4

Defendant committed the acts and omissions alleged herein with intent and/or reckless

5

disregard of Plaintiffs' rights.

6

77.

As a direct and proximate result of the aforementioned acts, Plaintiffs have

7

suffered, and continue to suffer humiliation, hardship and anxiety, due to the Municipal

8

Defendant's failure to address accommodations, modifications, services and access

9

required for Plaintiffs' disabilities.

10

78.

Municipal Defendant's discriminatory conduct is ongoing. Plaintiffs have

11

no adequate remedy at law and are entitled to declaratory and injunctive relief set forth

12

in 29 U.S.C. §794(a) and the Civil Rights Act of 1964, 42 U.S.C. 2000d-7(2).

13
14

79.

Plaintiffs are also entitled to reasonable attorneys' fees and costs incurred

in bringing this action.

15

VIII. THIRD CAUSE OF ACTION

16

The Americans with Disabilities Act, Title III

17

(Against Scooter Defendants)

18
19
20

80.

Plaintiffs incorporate by reference each and every allegation contained in

the foregoing paragraphs.
81.

Title III of the ADA provides in relevant part: "No individual shall be

21

discriminated against on the basis of disability in the full and equal enjoyment of the

22

goods, services, facilities, privileges, advantages, or accommodations of any place of

23

public accommodation by any person who owns, leases (or leases to) or operates a place

24

of public accommodation." 42 U.S.C. § 12182(a).

25

82.

Places of public accommodation are facilities operated by a private entity

26

including a sales or rental establishment and a place of exercise and recreation. 42

27

U.S.C. § 12181 (7)(E) & (I); 28 C.F.R. § 36.104.

28
21
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.22 Page 22 of 30

83.

1

2

Discrimination under Title III includes a failure to remove barriers to

access when the removal of a barrier is readily achievable. 42 U.S.C. § 12181(2)(a)(iv).
84.

3

The ADA's broad protection against discrimination based on disability

4

under Title III is not limited to clients or customers of the operator of a place of public

5

accommodation. See Molski v. Cable, Inc., 481 F. 3d 724 (9th Cir. 2007).
85.

6

The Scooter Defendants have used and appropriated and continue to use

7

and appropriate various portions of the City's public sidewalks, crosswalks, transit

8

stops, curb ramps, pedestrian crossing and walkways, effectively turning them into their

9

private retail stores, showrooms and storage facilities for their recreational dockless

10

scooters business. The public walkways utilized by Scooter Defendants are therefore

11

places of public accommodation covered by Title III of the ADA.
86.

12

The Scooter Defendants have violated Title III of the ADA by

13

discriminating against persons based on their disability as described herein and denying

14

access to Scooter Defendants' facilities.
87.

15

The Scooter Defendants' use and appropriation of portions of the City's

16

public sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossings and

17

walkways for its business operations have created multiple barriers and hazards for

18

Plaintiffs due to their mobility and/or visual disabilities making these walkways

19

inaccessible to them, forcing Plaintiffs to risk their safety and well-being whenever they

20

venture around the City and deterring them from leaving their home.
88.

21
22

Defendants but Defendants have failed and refused to remove or mitigate them.
89.

23
24

The removal of these barriers and hazards is readily achievable by Scooter

Plaintiffs are entitled to declaratory and injunctive relief pursuant to 42

U.S.C. § 12188(a).
90.

25

Plaintiffs are further entitled to reasonable attorneys' fees and costs

26

incurred in bringing this action.

27

Ill

28

///
22
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.23 Page 23 of 30

1

IX. FOURTH CAUSE OF ACTION

2

(California Government Code §4450)

3

(Against Municipal Defendant)
91.

4
5

Plaintiffs incorporate by reference each and every allegation contained in

the foregoing paragraphs.
92.

6

The system of sidewalks, crosswalks, transit stops, curb ramps, pedestrian

7

crossings and other walkways are publicly funded and intended for use by the public

8

within the meaning of California Government Code § 4450, et seq.
93.

9

Plaintiffs are informed, believe and thereon alleges that the Municipal

1O Defendant and its agents and employees have and continue to violate California
11

Government Code § 4450 et seq. and regulations implemented pursuant thereto by

12

operating the system of sidewalks, crosswalks, curb ramps, pedestrian crossings and

13

other walkways in violation of disability access requirements, for the reasons set forth

14

above.
94.

15

The aforementioned acts and om1ss10ns of the Municipal Defendant

16

constitute denial of equal access to and use of the system of sidewalks, crosswalks,

17

transit stops, curb ramps, pedestrian crossings and other walkways and caused Plaintiffs

18

to suffer deprivation of their civil rights.
95.

19

As a direct and proximate result of the aforementioned acts, Plaintiffs have

20

suffered, and continue to suffer, humiliation, hardship and anxiety, due to the Municipal

21

Defendant's failure to address accommodations, modifications, services and access

22

required for Plaintiffs' disabilities.
96.

23
24

The Municipal Defendant's discriminatory conduct is ongoing. There is no

adequate remedy at law, and Plaintiffs are entitled to declaratory and injunctive relief.
97.

25
26

this action.

27

Ill

28

Plaintiffs are also entitled to reasonable attorneys' fees and costs in filing

Ill
23
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.24 Page 24 of 30

1

X. FIFTH CAUSE OF ACTION

2

(California Government Code §11135)

3

(Against All Defendants)

98.

4

5

Plaintiffs incorporate by reference each and every allegation contained in

the foregoing paragraphs.
99.

6

Section l l 135(a) of California Government Code provides in relevant part:

7

"[N]o person in the State of California shall, on the basis of... disability, be unlawfully

8

denied the benefits of, or be unlawfully subjected to discrimination under, any program

9

or activity that is conducted, operated, or administered by the state or by any state

10

agency, is funded directly by the state, or receives any financial assistance from the

11

state."

12

100. The Municipal Defendant is funded directly by the State of California and

13

receives financial assistance from the State of California sufficient to invoke the

14

coverage of Government Code Sections 11135, et seq. The Municipal Defendant was

15

and is the recipient of such funding and financial assistance at all times relevant to the

16

claims asserted in this Complaint.

17

101. Section 11150 of the California Code of Regulations defines a "program

18

or activity" as "any project, action or procedure undertaken directly by recipients of

19

State support or indirectly by recipients through others by contracts, arrangements or

20

agreements, with respect to the public generally or with respect to any private or public

21

entity."

22

102. Section 11150 of the California Code of Regulations defines "[ s]tate

23

financial assistance" as "any grant, entitlement, loan, cooperative agreement, contract

24

or any other arrangement by which a State agency provides or otherwise makes

25

available aid to recipients in the form of. .. (3) real or personal property or any interest

26

in or use of such property, including: (A) transfers or leases of property for less than

27

fair market value or for reduced consideration ... "

28

Ill
24
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.25 Page 25 of 30

1

103. Section 11150 of the California Code of Regulations defines "[r]ecipient"

2

as any "person, who ... receives State support .. .in an amount in excess of$10,000 in the

3

aggregate per State fiscal year ... by grant, contract or otherwise, directly or through

4

another recipient. .. ".

5

104. The Municipal Defendant is a direct recipient of state financial assistance.

6

The Scooter Defendants are recipients of state financial assistance through another

7

recipient, the Municipal Defendant.

8

105. Plaintiffs are informed, believe and thereon allege that Defendants and

9

their agents and employees have and continue to violate California Government Code

10

§ 1113 5 by unlawfully denying Plaintiffs the benefits of the system of sidewalks,

11

crosswalks, curb ramps, transit stops, pedestrian crossings and other walkways, and

12

unlawfully subjecting Plaintiffs to discrimination regarding the Municipal Defendant's

13

programs and activities, for the reasons set forth above.

14

106. Defendants have refused and failed to provide Plaintiffs with full and equal

15

access to their facilities, programs, services and activities as required by California

16

Government Code Sections 11135, et seq. through their policies and practices with

17

regard to the system of sidewalks, crosswalks, curb ramps, transit stops, pedestrian

18

crossings and other walkways that fail to maintain and/or that obstruct the system's

19

accessibility for people with disabilities.

20

107. As a direct and proximate result of the aforementioned acts, Plaintiffs have

21

suffered, and continue to suffer humiliation, hardship and anxiety, due to Defendants'

22

failure to address accommodations, modifications, services and access required for

23

Plaintiffs' disabilities.
108. Defendants' discriminatory conduct is ongomg. There is no adequate

24
25

remedy at law, and Plaintiffs are entitled to declaratory and injunctive relief.
109. Plaintiffs are also entitled to reasonable attorneys' fees and costs in filing

26
27

this action.

28

Ill
25
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.26 Page 26 of 30

1

XI. SIXTH CAUSE OF ACTION

2

California Civil Code§ 54 et seq.

3

(Against All Defendants)

4
5

110. Plaintiffs incorporate by reference each and every allegation contained in
the foregoing paragraphs.

6

111. California Civil Code§ 54(a) provides that "[i]ndividuals with disabilities

7

or medical conditions have the same right as the general public to the full and free use

8

of ... sidewalks, walkways ... and other public places."

9
10

112. Plaintiffs are persons with disabilities within the meaning of California
Civil Code§ 54(b)(l) and California Government Code§ 12926.

11

113. California Civil Code Section 54.3 provides that "[a]ny person or persons,

12

firm or corporation who denies or interferes with admittance to or enjoyment of the

13

public facilities as specified in Sections 54 and 54.l or otherwise interferes with the

14

rights of an individual with a disability under Sections 54, 54.l and 54.2 is liable for

15

each offense for the actual damages and any amount as may be determined by a jury, or

16

the court sitting without a jury, up to a maximum of three times the amount of actual

17

damages but in no case less than one thousand dollars ($1,000), and attorney's fees as

18

may be determined by the court in addition thereto, suffered by any person denied any

19

of the rights provided in Sections 54, 54.1, and 54.2."

20

114. Defendants have deprived Plaintiffs of their right to have full and free use

21

of sidewalks, walkways, transit stops, and other public places, and therefore violate

22

California Civil Code§ 54.

23
24

115. For all the reasons outlined above, Defendants violated the rights of
Plaintiffs under California Civil Code § 54.

25

116. As a direct and proximate result of the aforementioned acts, Plaintiffs have

26

suffered, and continue to suffer, humiliation, hardship and anxiety, due to Defendants'

27

failure to address accommodations, modifications, services and access required for

28

Plaintiffs' disabilities.
26
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.27 Page 27 of 30

117. Because Defendants' discriminatory conduct is ongoing, declaratory and

1

2

injunctive relief are appropriate remedies.
118. Plaintiffs are entitled to reasonable attorneys' fees and costs in filing this

3

4
5
6

action.
119. Plaintiffs also seek an award of statutory damages under California Civil
Code§ 54.3.

7

XII. SEVENTH CAUSE OF ACTION

8

(California Civil Code §51 et seq.)(The Unruh Act)

9

(Against All Defendants)

10

11

120. Plaintiffs incorporate by reference each and every allegation contained in
the foregoing paragraphs.

12

121. California Civil Code§ 5l(b) (the Unruh Civil Rights Act) provides that

13

"All persons within the jurisdiction of this state are free and equal, and no matter what

14

their sex, race, color, religion, ancestry, national origin, disability, medical condition,

15

genetic information, marital status, sexual orientation, citizenship, primary language, or

16

immigration status are entitled to the full and equal accommodations, advantages,

17

facilities, privileges, or services in all business establishments of every kind

18

whatsoever".

19

122. The Unruh Civil Rights Act prohibits discrimination on the basis of

20

disability in the full and equal access to the services, facilities, and advantages of a

21

business establishment. The term "business establishment" has been interpreted in the

22

broadest sense reasonably possible, to include public entities such as schools, see

23

Gibson v. County of Riverside, 181 F. Supp. 2d 1057 (2002), and entities whose

24

activities demonstrate that it is the functional equivalent of a classical place of public

25

accommodation or amusement, see Stevens v. Optimum Health Institute, San Diego,

26

810 F. Supp. 2d 1074 (2011).

27
28

123. A violation of the right of any individual under the ADA is also a violation
of the Unruh Act. Ca. Civil Code§ 51(f).
27
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.28 Page 28 of 30

1

124. Defendant City of San Diego's system of public sidewalks, crosswalks,

2

transit stops, curb ramps, pedestrian crossings and other walkways is a "business

3

establishment" operated by the City as defined by the Unruh Act, Ca. Civil Code § 51.

4

125. The Scooter Defendants' appropriation of varying portions of public

5

sidewalks, crosswalks, transit stops, curb ramps, pedestrian crossing, and other

6

walkways for use as their functional retail stores, showrooms and storage facilities for

7

their dockless scooter business is a "business establishment" of said Defendants as

8

defined by the Unruh Act.

9

126. Defendants have denied full and equal accommodations and/or services to

1O

Plaintiffs, harming Plaintiffs as set forth throughout this action. The conduct of

11

Defendants was a substantial factor in causing Plaintiffs' harm.

12

127. Whoever denies, aids, or incites a denial, or makes any discrimination or

13

distinction contrary to the provisions of the Unruh Civil Rights Act, is liable for each

14

and every offense for the actual damages, and any amount that may be determined by a

15

jury, or a court sitting without a jury, up to a maximum of three times the amount of

16

actual damage but in no case less than a $4,000, suffered by a person denied rights under

17

the Act. In addition, a court may award attorney's fees to a prevailing plaintiff. Ca. Civil

18

Code§ 52(a).
128. Plaintiffs also seek an award of statutory damages, attorneys' fees and

19
20

costs pursuant to Civil Code §52.

21

129. Defendants are engaged in conduct of resistance to the full enjoyment of

22

rights of people with disabilities as described herein. Plaintiffs are therefore entitled to

23

preventative relief including a permanent or temporary injunction and other equitable

24

relief. Ca. Civil Code§ 52(c)(3).

25

Ill

26

Ill

27

Ill

28

Ill
28
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.29 Page 29 of 30

PRAYER FOR RELIEF

1

130. Lead Plaintiffs, individually, and on behalf of the Putative Class, pray for

2
3

judgment and relief against Defendants as Follows:

4

A. For an order declaring this a class action pursuant to Rule 23 of the

5

Federal Rules of Civil Procedure on behalf of the Putative Class

6

described herein and appointing Lead Plaintiffs to serve as class

7

representatives and Plaintiffs' counsel Neil Dymott Frank McCabe and

8

Hudson, APLC as Lead Counsel for the Putative Class;

9

B. For an order enjoining the Scooter Defendants from continuing to

10

operate on the system of sidewalks, crosswalks, curb ramps, transit

11

stops, pedestrian crossings and other walkways in the City of San

12

Diego;

13

C. For an order that this matter remain under this Court's jurisdiction until

14

Defendants fully comply with the Orders of this Court;
D. For an order requiring disgorgement of monies wrongfully obtained as

15

16

a result of the Scooter Defendants wrongful and illegal conduct;

17

E. For statutory damages arising from Defendants' wrongful and illegal
conduct;

18

F. For an award of reasonable attorneys' fees and all costs and expenses

19

20

incurred in the course of prosecuting this action;

21

G. For pre-judgment and post-judgment interest at the legal rate; and

22

H. For such other and further relief as the Court deems just and proper.

23

Ill

24

Ill

25

Ill

26

Ill

27

Ill

28

Ill
29
CLASS ACTION COMPLAINT

Case 3:19-cv-00054-JM-BGS Document 1 Filed 01/09/19 PageID.30 Page 30 of 30

JURY DEMAND

1

2

Plaintiffs demand a trial by jury on all issues so triable.

3

4
5

Respectfully submitted,
Dated: January 9, 2019

6

NEIL, DYMOTT, FRANK, MCCABE & HUDSON
A Professional Law Corporation
By:

7

)J/ Robert-W. Franlv
Michael I. Neil
[e-mail]
Robert W. Frank
[e-mail]

8

9
10

By:

1/ Mattluuv R. Souther

11
12
13

14
15
16

Dated: January 9, 2019

DISABILITY RIGHTS CALIFORNIA

Dated: January 9, 2019

DISABILITY RIGHTS CALIFORNIA

17
18
19

20
21

22
23
24

By:

25

26
27
28

30
CLASS ACTION COMPLAINT