Kirola v. City & County of San Francisco, The

Opinion

1 2 3 6 7 IVANA KIROLA, et al., Case No. 07-cv-03685-AMO

8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PHASE II INJUNCTIVE RELIEF THE, et al., Re: Dkt. Nos. 825, 843 11 Defendants.

12 13 Before the Court is Plaintiffs’ motion for permanent injunction. The matter is fully briefed 14 and suitable for decision without oral argument. See Civil L.R. 7-1(b). This Order assumes 15 familiarity with the case’s record. Having read the parties’ papers and carefully considered their 16 arguments and the relevant legal authority, the Court hereby GRANTS IN PART and DENIES 17 IN PART the motion for the following reasons. 19 Pursuant to the Ninth Circuit decision and mandate, Kirola v. City & Cnty. of San 20 Francisco, No. 21-15621, 2023 WL 2851368, at *3 (9th Cir. Apr. 10, 2023), cert. denied sub nom. 21 City & Cnty. of San Francisco, California v. Kirola, 144 S. Ct. 185 (2023) (“Kirola II”), the Court 22 ordered the parties to prepare post-trial briefing regarding the alleged Americans with Disabilities 23 Act Accessibility Guidelines (ADAAG)1 violations at the 11 identified facilities. ECF 814. 24 Plaintiffs moved for injunctive relief, arguing that the evidence at the 2011 trial – based on the 25 testimony of Plaintiffs’ expert Jeffrey Mastin – showed violations at each of the 11 facilities. ECF 26 825. Defendants concede the existence of violations at various facilities, agree to remedy them, 27 1 and contest the remaining allegations. ECF 829. 3 Defendants concede the existence of the following violations and agree to remedy them: 4 (1) the step to get into both restrooms at the Botanical Gardens (ECF 829 at 15); (2) the slope 5 inside the gate toward the entrance to the playground at the Bernal Heights Recreation Center (id. 6 at 17); (3) the entrance gate hardware at the Bernal Heights Recreation Center (id. at 18); (4) the 7 uninsulated sink hot water and drain pipes at the Bernal Heights Recreation Center (id.); (5) the 8 lack of accessible signage at the Woh Hei Yuen Recreation Center (id. at 21); and (6) the toilet 9 stall door latch at the Martin Luther King Swimming Pool (id. at 23). Accordingly, the Court 10 GRANTS injunctive relief to these violations as unopposed. 11 The Court next turns to the alleged violations at the Minnie and Lovie Ward Recreation 12 Center (“Ward Recreation Center”). Though Defendants seemingly agree to an injunction, they 13 condition that agreement on a finding that the alleged violations were remedied as part of a 2013 14 renovation. ECF 829 at 15-16. In support of their position, Defendants ask the Court to take 15 judicial notice of a San Francisco Recreation & Parks webpage announcing that renovations had 16 been completed. Id. at 16 n.1. The Ninth Circuit mandate did not require the Court to consider 17 evidence outside of the trial record, see Kirola II, 2023 WL 2851368, at *1-3, and for the purposes 18 of this motion, the Court only considers evidence presented at the 2011 trial. See ECF 842 at 10- 19 14. Thus, it will not consider post-trial renovations to the recreation center.2 The Court therefore 20 DENIES the request for judicial notice of the website. Defendants also move to file a sur-reply to 21 object to evidence outside of the trial record that Plaintiffs include in their reply regarding recent 22 site inspections at the Botanical Gardens, the Bernal Heights Recreation Center, and the Minnie 23 and Lovie Ward Recreation Center. ECF 843 (citing ECF 837, 837-2). Because the Court does 24 not consider evidence outside the trial submitted by Defendants or Plaintiffs, the Court DENIES 25

26 2 Moreover, the webpage is not a proper subject of judicial notice as its contents are subject to dispute. See Fed. R. Evid. 201(b) (courts may take judicial notice of facts that are “not subject to 27 reasonable dispute”). Indeed, Plaintiffs contend that Defendants do not provide any evidentiary 1 that motion as moot. 2 To prove up the alleged ADAAG violations at the Ward Recreation Center, Plaintiffs point 3 to trial evidence concerning inaccessible ramps, routes, and paths, and a lack of accessible 4 signage. The ramps at the Ward Recreation Center have excessive running slopes and cross 5 slopes, and non-compliant handrails. Wallace Decl. (ECF 826), Ex. F at 1165. The East entrance 6 ramp has a cross slope of 3% in violation of ADAAG §§ 4.3.7 and 4.8.6, excessive running slopes 7 of up to 9.8%, in violation of ADAAG § 4.8.2, and the bottom section of the ramp has a 6.33% 8 running slope without handrails in violation of ADAAG § 4.8.5. Id., Ex. T. Second, the routes to 9 the ball fields are not accessible because one route is a chained off dirt path that is too narrow to 10 navigate, in violation of ADAAG §§ 4.13.5, 4.13.6, 4.3.6, and 4.5.1. Wallace Decl., Ex, F at 11 1163-64; Ex. S. The alternative route has a 9.8% cross-slope, which is nearly five times greater 12 than permissible under ADAAG § 4.3.7, and “slopes towards [] a dropoff and a grate,” so there is 13 a risk of injury “if you lose control.” Id. at 1168-69; Ex. V. The pathways are also covered in 14 mud due to a flawed design where the drainage runs across the path, in violation of ADAAG §§ 15 4.3.6 and 4.5.1, and the planting on the path is overgrown, restricting the available width, in 16 violation of ADAAG § 4.4.1. Id. Third, the path to the tennis courts consists of dirt, in violation 17 of ADAAG §§ 4.3.6 and A4.5.1. Wallace Decl., Ex. F at 1166-67; Ex. U. Fourth, there is a lack 18 of accessible signage in violation of ADAAG § 4.1.3(8)(d). Wallace Decl., Ex. F at 1162-63. 19 Defendants respond only that the “trial testimony and evidence presented by Plaintiffs fails to 20 adequately specify the purported violations.” ECF 829 at 15-16. The Court disagrees and finds 21 that Plaintiffs have sufficiently evidenced ADAAG violations at the Ward Recreation Center. 22 Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013). The Court therefore GRANTS 23 injunctive relief as to the Minnie and Lovie Ward Recreation Center. 24 Defendants similarly dispute whether the trial evidence is sufficiently specific to establish 25 ADAAG violations at the remaining facilities. The ADAAG standards are “as precise as they are 26 thorough, and the difference between compliance and noncompliance with the standard of full and 27 equal enjoyment established by the ADA is often a matter of inches.” Kirola I, 860 F.3d at1178 1 on an ADA claim, a plaintiff need “not prove up a precise measurement.” Strong, 724 F.3d at 2 1046; see also Kirola II, 2023 WL 2851368, at *3 (“it is well established that neither expert 3 testimony nor precise measures are required to prove an ADAAG violation”). However, a 4 plaintiff who “proffer[s] evidence of precise measurements” “no doubt present[s] a more powerful 5 case at trial.” Strong, 724 F.3d at 1045. 6 At trial, Plaintiffs’ expert testified about the accessibility barriers at the 11 identified 7 facilities. As detailed in the chart below, Plaintiffs presented sufficient evidence of ADAAG 8 violations at various facilities, including routes that are inaccessible due to greater than 9 permissible running slopes, lavatory stalls that are too narrow for a wheelchair to enter, mounted 10 bathroom hardware that is higher than permitted under the ADAAG, restroom doors requiring 11 greater force than permitted by ADAAG regulations, and playground structures that are built on 12 inaccessible materials. Defendants contend that Plaintiffs’ evidence was not specific enough to 13 show ADAAG violations. For example, Defendants take issue with Plaintiffs’ expert testifying 14 (1) “I think” there were 22 play components but only two structures were accessible (Baruth Decl., 15 Ex. 1 at 1121-22); (2) thresholds that may not be more than half an inch were “about an inch high” 16 (Wallace Decl., Ex. F at 1139-40); (3) mounted hardware was above 54 inches without specifying 17 an exact measurement (id. at 1157); and (4) “I believe” restroom doors required “7 or 8” pounds of 18 force, when no more than five pounds is permitted (id. at 1141). Defendants, however, point to no 19 caselaw that the expert was required to provide exact measurements or that his opinions were 20 insufficient. Indeed, the Ninth Circuit has clarified that precise measurements are not required to 21 prove an ADAAG claim. See Strong, 724 F.3d at 1046. The Court therefore finds Defendants’ 22 arguments unpersuasive. Moreover, with very limited exception, Defendants point to no trial 23 evidence contradicting Plaintiffs’ expert testimony. In fact, the only places where defense experts 24 countered Plaintiffs’ expert testimony were vague statements without foundation that the facilities 25 were “accessible.” See Baruth Decl., Ex. 1 at 2117, 2101. 26 Defendants also insist that the testimony was too vague to prove violations at certain 27 facilities. See Wallace Decl., Ex. F at 1157 (the boys’ bathroom has “sloping floors”); id. at 1141 1 “similar barriers” at other recreation centers and found that they “[n]one of [them] . . . were 2 accessible”). This evidence is indeed too vague for the Court conclude that these barriers 3 constituted ADAAG violations. 4 The Court organizes the alleged violations and the evidence presented regarding each 5 violation in the chart below for the ease of viewing the evidence presented at each facility:

6 Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 7 Violation Evidence Botanical Accessible Expert Mastin Expert Wood ADAAG Violation. 8 Gardens route is too testified that in 17 testified that steep and places, the running Plaintiffs’ expert The Court rejects 9 lacks slope of the ramp is misapplied the Defendants’ arguments handrails 5.7 to 15.4%, where ADAAG. Baruth that Plaintiffs did not 10 5% is the maximum Decl., Ex. 1 at specify the locations of 11 permitted without 2185:15 – 2186:7. the noncompliant handrails and ramp conditions, and that 12 features. Wallace Plaintiffs’ experts did Decl., Ex. F at 1186; not perform adequate 13 ADAAG §§ 4.3.7, measurements or 4.8.2. comply with the DOJ 14 toolkit. ECF 829 at 15 13-14.3

16 Botanical Inaccessible The men’s restroom The bathroom ADAAG violation. Gardens men’s had a cross-slope of “facility itself was 17 restrooms 5% in floor surface [] accessible” and Defendant’s vague leading to the had “accessible expert testimony fails 18 accessible stall, in stalls, accessible to contradict Plaintiffs’ 19 violation of ADAAG lavatories, evidence that the floor § 4.3.7. The accessible doors.” had a cross-slope of 20 accessories are too Id. at 2117.4 5%, violating ADAAG 21 3 Defendants rely on the district court’s 2014 ruling criticizing Mr. Mastin’s slope measurements. 22 ECF 829 at 14 (citing Kirola v. City & Cnty. of San Francisco, 74 F. Supp. 3d 1187, 1223 (N.D. Cal. 2014), aff’d in part, rev’d in part, 860 F.3d 1164 (9th Cir. 2017)). However, the Ninth 23 Circuit subsequently held that Plaintiffs’ experts’ approach complied with the DOJ approach in the ADA Best Practices Tool Kit and that Plaintiffs’ experts applied the proper method for measuring 24 slopes. Kirola I, 860 F.3d at 1181-82 (“[B]ecause it is the steepest point on the ramp that affects whether a wheelchair user can navigate the ramp, it is the maximum localized variation, used by 25 Kirola’s experts, rather than the average slope, used by the City’s experts, that is the correct benchmark.”). Defendants also note that the district court criticized Plaintiffs’ experts use of the 26 use of a short level in their measurements, but this criticism referred to measurements made by a different expert for a different facility. ECF 829 at 14 (citing Kirola, 74 F. Supp. 3d at 1223). 27 Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 1 Violation Evidence 2 high. Wallace Decl., § 4.3.7.5 Ex. F at 1178, 1182- 3 83. Botanical Inaccessible The women’s The bathroom ADAAG violation. 4 Gardens women’s restroom stalls “are “facility itself was restrooms much too narrow to accessible” and Plaintiffs’ expert’s 5 allow entrance by a had “accessible testimony that the 6 person using a stalls, accessible stalls were too narrow wheelchair” and the lavatories, for a wheelchair user 7 paper towel accessible doors.” and the paper towel dispenser was “too Baruth Decl., Ex. 1 dispensers were too 8 high” in both at 2117. high is sufficient to restrooms. Id. at establish an ADAAG 9 1181-83. violation. See Strong, 10 724 F.3d at 1046 (“witnesses may 11 estimate size, weight, distance, speed and 12 time even when those quantities could be 13 measured precisely”). 14 Bernal Playground “The playground None. ADAAG Violation. 15 Heights surface itself is on sand. I Recreation consists of think there were 22 The Court rejects 16 Center sand play components Defendants’ arguments 17 involved with that that it is not specific play structure, but enough for Plaintiffs’ 18 there are only – of 7 expert to say that he 19

20 C.F.R. § 36.403). However, 28 C.F.R. § 36.403 is in Title III of the ADA, and applies to the private sector, not the City, which is covered by Title II of the ADA. The current Title II 21 regulations contain a similar provision, 28 C.F.R. § 35.151(b)(4), but that regulation did not become effective until March 2011, making it inapplicable to the Botanic Gardens Project, which 22 commenced in 2008. See Wallace Decl., Ex. F at 1175-76. Moreover, even if this limitation applied, it is Defendants’ burden to prove disproportionate cost, and they have not offered any 23 evidence. See N.L.R.B. v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 711 (2001) (citation omitted) (there is a “general rule of statutory construction that the burden of proving justification 24 or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits”); Lemmons v. Ace Hardware Corp., 2014 WL 3107842, at *9 (N.D. Cal. July 25 3, 2014).

26 5 Defendants also point to trial evidence that is not relevant to this violation. See Baruth Decl., Ex. 1 at 2115-16 (“A vast percentage of the site has been made accessible. It’s only as you get in the 27 back and there’s some natural terrain topography issues that are very steep that are very, very Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 1 Violation Evidence 2 different types, “thinks” that only two meaning swinging, components are 3 climbing, et cetera, accessible and does not but there were only 2 state what percentage 4 that are actually of the playground is accessible. . . . I located on sand, ECF 5 think there were 829 at 16-17. 6 three or four structures . . . [a]nd 7 they’re all located on sand except there’s [] 8 access to two swings[.]” Wallace 9 Decl., Ex. F at 1121- 10 22.

11 Bernal Inaccessible Thresholds are None. ADAAG Violation. Heights restrooms: “about an inch high, 12 Recreation high and they should be The Court rejects Center entrance no more than a half- Defendants’ argument 13 doorway inch high.” Wallace that Plaintiffs’ experts’ 14 thresholds Decl., Ex. F at 1139- approximate 40. measurement is too 15 vague. See Strong, 724 F.3d at 1046. 16

17 Bernal Inaccessible “The clearances in None. ADAAG Violation. Heights restrooms: the accessible stalls, 18 Recreation clearances it’s too narrow. But The Court rejects Center too narrow I couldn’t see any Defendants’ argument 19 in reason why it that Plaintiffs needed designated shouldn’t be the to provide exact 20 accessible correct width.” measurements. See 21 toilet stalls Wallace Decl., Ex. F Strong, 724 F.3d at at 1140. 1046. 22 Tenderloin Inaccessible The floor of the None. ADAAG violation as 23 Recreation boys’ and girls’ restroom has a to the girls’ bathroom Center girls’ first cross-slope of 2.7% accessibility and as to 24 floor to 4.8%, which is the mounted hardware 25 restrooms above the 2% cross in both bathrooms. slope permitted by 26 ADAAG § 4.3.7. The Court rejects Wallace Decl., Ex F Defendants’ arguments 27 at 1151-52. that Plaintiffs needed Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 1 Violation Evidence 2 The mounted the mounted hardware, hardware was above ECF 829 at 20. See 3 54 inches in both Strong, 724 F.3d at bathrooms, which is 1046. The Court also 4 higher than rejects Defendants’ permissible under argument that 5 ADAAG § 4.13.9. Plaintiffs’ expert does 6 Id. at 1157. not identify how he made measurements, 7 ECF 829 at 19.6

8 However, there is The boys’ bathroom insufficient evidence 9 has “sloping floors.” as to whether the 10 Id. sloping in the boys’ bathroom constitutes 11 an ADAAG violation.

12 Tenderloin Inaccessible The women’s None. ADAAG Violation. Recreation second restroom was 13 Center floor men’s “completely Strong does not require 14 and inaccessible” an exact measurement, women’s because “a person in which is the only 15 restrooms a wheelchair . . . ground Defendants would be unable to raise in opposition, 16 . . . open that door to ECF 829 at 20. See 17 leave the restroom, 724 F.3d at 1046. because it’s – the 18 clear space in order to do that is 19 obstructed by the lavatory and the [] 20 built-in wall waste 21 receptacle.” Wallace Decl., Ex F at 1155- 22 56; see ADAAG §§ 4.13.5, 4.13.6, 23 4.17.5. The men’s room was also 24 25 6 The Ninth Circuit sustained the district court’s criticism of a different expert’s failure to consider 26 dimensional tolerances. Kirola I, 860 F.3d at 1182; see supra n.3. Further Defendants argue that Plaintiffs’ expert did not show where the accessible toilet is in the restroom or where the 2.7% 27 cross slope exists in comparison to the 4.8% slope. ECF 829 at 19. However, as a cross slope Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 1 Violation Evidence 2 “inaccessible, again dealing [] mainly 3 with clearances.” Id. at 1158. 4 Tenderloin Non- “The elevator is not The City’s expert ADAAG Violation. 5 Recreation functional functioning. And the concluded that 6 Center elevator staff mentioned that “what we found [at Defendants’ argument it has never really the Tenderloin that it is speculation 7 functioned in the Recreation Center] that the elevator has time that this is is accessible not worked since 1992, 8 constructed since – routes, accessible ECF 829 at 20, does I’m assuming since entrances, toilets.” not dictate a different 9 1992 when I believe Baruth Decl., Ex. 1 outcome.7 10 there was a at 2101. renovation.” 11 Wallace Decl., Ex F at 1156; see 12 ADAAG § 4.3.8 (requiring ramp, 13 elevator, or platform 14 lift).

15 Who Hei Inaccessible The bathrooms are None. ADAAG violation. Yuen restrooms likely to trap users 16 Recreation because there is no Defendants’ argument 17 Center way to enter and about the need for close the door. specific measurements 18 Wallace Decl., Ex F is not well-taken. See at 1159; see ECF Strong, 724 F.3d at 19 826-18, Ex R (“This 1046. door is completely 20 unusable to the 21 majority of wheelchair users; 22 further it is likely to trap a user who 23 attempts to maneuver into a transfer 24 position to the WC.”) 25 In “[a]n accessible 26

27 7 While the Court agrees that there is insufficient evidence that the elevator has not functioned Facility Alleged Plaintiffs’ Evidence Defendants’ Finding 1 Violation Evidence 2 stall, one of the requirements is that 3 you can . . . actually enter it, then close 4 the door based on a wheelchair-sized 5 area, which is 30 6 inches by 48. In this case, [in] both the 7 men’s and the women’s, there’s no 8 way to actually get in there and close the 9 door. It was not 10 actually physically possible using that 11 area.” Id. at 1158- 59.8 12 Upper Inaccessible The restroom doors Plaintiffs’ expert ADAAG Violation. 13 Noe restrooms cannot require more stated that door 14 Recreation than five pounds of pressure can vary Strong does not require Center force to open and within a range, an exact measurement. 15 Mastin stated, “I suggesting that the See 724 F.3d at 1046. believe they were 7 pressure may 16 or 8 [pounds].” sometimes comply 17 Wallace Decl., Ex F with the ADAAG. at 1141; see Baruth Decl., Ex. 1 18 ADAAG § at 1272. 4.13.11(2)(b). 19 The restroom doors 20 close twice as fast as 21 they should. Wallace Decl., Ex F 22 at 1142; see ADAAG § 4.13.10. 23 Upper Lack of “I think the chief The expert does No violation. The 24 Noe accessible barriers were a not identify what Court cannot 25 Recreation signage problem with signage is missing determine what issues Center signage.” Wallace or whether or how exist with signage, and 26 Decl., Ex. F at 1141. existing signage is thus cannot issue a non-compliant remedy. 27 1 Facility Alleged Plaintiffs’ Evidence Defendants’ Finding Violation Evidence 2 with the ADAAG. ECF 829 at 23. 3 Eureka ADAAG “T did find similar None. There is insufficient 4 Valley, violations barriers [to the other evidence for the Court 5 Gene similar to recreation centers]” to find any violation, Friend, those and “[nJone of the much less order a 6 Joseph above, ten [other recreation remedy. Lee, and including a | centers] that I 7 Richmond | lack of inspected were Recreation | compliant | accessible.” Wallace 8 Centers restrooms, Decl., Ex. F at 1170- 9 entrances, 71. and 10 accessible signage. 11 12

v 14 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

15 Plaintiffs’ motion for injunctive relief. Because the Court does not consider evidence outside of A 16 || the trial record, it DENIES AS MOOT Defendants’ administrative motion to file a sur-reply.

2 17 The Court ORDERS the parties to meet and confer and file a proposed injunction consistent with

2 18 this Order by September 18, 2024, which should include a timeline for Defendants to remedy the 19 violations. In light of the violations that the Court has found, the Court also orders the parties to 20 || provide additional briefing on the need for broader injunctive relief (“Phase IIT”). By September 21 4, 2024, the parties shall submit a stipulation proposing a briefing schedule and page limit for 22 || briefs regarding whether further injunctive relief is appropriate and its scope. 23 25 Dated: August 19, 2024 26 ) Wed rf 27 ARACELI MARTINEZ-OLGUIN 28 United States District Judge