Mayer v. City Of San Jose

• Court: District Court, N.D. California
• Decided: September 16, 2024
• Docket: 5:20-cv-06710
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 THOMAS MAYER, Case No. 5:20-cv-06710-EJD

9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 10 v. MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART 11 CITY OF SAN JOSE, AND DENYING IN PART DEFENDANT’S MOTION FOR 12 Defendant. SUMMARY JUDGMENT

13 Re: Dkt. Nos. 69, 71 14

Plaintiff, Thomas Mayer (“Mayer”), filed suit against Defendant, City of San Jose 15 (“City”), alleging that the public facilities at the San Jose City Hall (“City Hall”) violate the 16 Americans with Disabilities Act (“ADA”), the California Unruh Civil Rights Act (“Unruh Act”), 17 and other California state laws. See Second Am. Compl. (“SAC”), ECF No. 61. 18 Before the Court is Mayer’s motion for summary judgment (“MSJ”) and the City’s cross- 19 motion for summary judgment (“Cross-MSJ”). Pl.’s Mot. for Summ. J. (“MSJ”), ECF No. 69; 20 Defs.’ Cross Mot. for Summ. J. (“Cross-MSJ”), ECF No. 71. The parties have fully briefed both 21 motions. Pl.’s Reply in Support of MSJ and in Opp’n of Cross-MSJ (“Pl.’s Reply”), ECF No. 77; 22 Def.’s Reply in Support of Cross-MSJ and in Opp’n to MSJ (“Def.’s Reply”), ECF No. 78. 23 Having carefully reviewed the relevant documents, the Court finds this matter suitable for 24 decision without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, 25 the Court GRANTS IN PART and DENIES IN PART Mayer’s motion for summary judgment 26 and GRANTS IN PART and DENIES IN PART the City’s cross-motion for summary judgment. 27 Case No.: 5:20-cv-06710-EJD I. BACKGROUND

5 A. Mayer Encounters Barriers at City Hall Mayer is disabled and uses a wheelchair for mobility. Responsive Separate Statement 3 (“Statement of Facts”),! Fact 1,2, ECF No. 76. Mayer is an amateur photographer who enjoys 4 capturing pictures of public protests and cultural events, which he refers to as “First Amendment 5 Events.” Jd. at Fact 8,9. Mayer has attended about a dozen First Amendment Events at City Hall 6 in the West Plaza on the evenings and weekends when City Hall is closed. /d. at Fact 8, 9, 10, 16, 4 Additional Fact E. The West Plaza is an outdoor space located adjacent to City Hall with various 8 elevated areas surrounding it. See id. at Additional Fact B. Portions of the West Plaza may be 9 reserved for events, but no permit or payment is required to conduct a simple assembly of persons 10 on an unreserved area of the West Plaza, including the First Amendment Events. Jd. at Fact 7. 11 Mayer illustrates the West Plaza as follows: 2 12 City Hall West Plaza ° > Fe 3 Weite a description tor your map: y le 4 a Pe Ack fe 1 i LL) = ani Wm, \ v 14 ol ree ‘oz = en rH bs Oo ie La es = eg it 3 15 ear = Ae ao =e If Fig § = na shah □□ == =... a — = 16 7. | jue? <.——-_ ae Aik y ay 4 rotunda's exterior terrace 5 MREEERaiaval hi ’ ee A: 17 | ZF 1 Steps next to the 3 Tiered seating a i heels i hi A Z, 18 i an ' s y € 19 7 a Me” Ms bea! sas + - 7 sg aes 20 as: a heme A oy Vie See A va an 1 / ===" pea aa TT, i eg aS Fe 23 Py le gs eM abate 24 || Declaration of Thomas Mayer (“Mayer Decl.”) § 7, ECF No. 69-3. 25 26 ye ' The Court cites to the parties’ Statement of Facts to identify undisputed facts unless otherwise 27 noted. Case No.: 5:20-cv-067 10-EJD 28 || ORDER GRANTING IN PART AND DEN. IN PART MSJ; GRANTING IN PART AND DEN. IN PART CROSS-MSJ

1 Mayer describes “Location 1” as the steps next to the battered wall or exterior walkway, 2 || “Location 2” as the flat viewing area, “Location 3” as the tiered seating, “Location 4” as the 3 || rotunda’s exterior terrace, and “Location 5” as the mezzanine level/balcony (collectively, 4 || “elevated areas”). See id. The City disputes Mayer’s characterization of Location 2 as a flat 5 || viewing area and Location 5 as a mezzanine or balcony, instead arguing that they are merely 6 walkways not intended to be used for viewing events. See Cross-MSJ 1; Statement of Facts, Fact 7 16. For ease of analysis, the Court will use Mayer’s labels to illustrate its discussion of the 8 elevated areas, but the Court does not reach conclusions regarding the elevated area’s function, as 9 discussed in greater detail below. 10 During the various First Amendment Events, Mayer has observed and photographed other 11 attendees standing in the elevated areas of the facility, which he believes offers a better view of the a 12 speakers and crowd. Mayer Decl. ff] 7, 10, 13-21; Mayer Decl., Ex. 1, 3, 4, 5, 6, 7, ECF No. 69-4,

13 69-6, 69-7, 69-8, 69-9, 69-10 (photographs). These photographs include the following: a on ee

5 17 = aa it i nila ee eon □□□ call a 5 i pee wa eC vets Te re ey es i | ae □□□□ | aye ey a ay 7 □□ 19 ee i □□□ na clan a eS = = —_ □□ ee 7 7 iV or □□□ iis = ee oo. : j= ' ©. at Top Left: Depicting Locations 4 and 1 aie 7 PO Cs 1. Mayer Decl., Ex. 1 ala a6 : : A wee ag xf Top Right: Depicting Locations 1, 23 || Bae me ee See Bi) PSMeee | 2. and3. fd, Ex.7. 24 □□□ 2 f 4 af Ae Bottom Depicting Locations 1, 25 || a ee and >. 2d.

26 |

Case No.: 28 || ORDER GRANTING IN PART AND DEN. IN PART MSJ; GRANTING IN PART AND DEN. IN PART CROSS-MSJ

1 Mayer cannot access any of the elevated areas when City Hall is closed because there is no 2 || wheelchair access to these locations from the exterior of City Hall. Statement of Facts, Fact 16. 3 There is, however, access to the rotunda and mezzanine through the interior of City Hall when 4 || City Hall is open, but the First Amendment Events have taken place on the weekend or after hours 5 || when City Hall is closed. Id. 6 Without access to the elevated areas, Mayer alleges, and the City disputes, that he is unable 7 to enjoy the event and take photographs in the same way able-bodied attendees can because his 8 view is obstructed. Id. 7. Specifically, Mayer alleges that he was denied equal access to these 9 elevated areas when he attended First Amendment Events in the West Plaza on November 24, 10 2019; January 18, 2020; July 4, 2020; May 1, 2022; and May 14, 2022. Mayer Decl. Jj 14, 15, 11 18, 19. a 12 For illustrative purposes, Mayer attached the following photograph to depict how his view

13 was obstructed during these instances: Rg ay EM □□ ee peg es mae by) Nl =. |) Sg Bree dl, Oh nie, bn | wo 16 || ppt ae Poet enh s □□ =) SEK - a aay 6 : at Pre > I a Fairness is Still al □□□ | Pere i Le y a a me a A Hung Right 4 me i. ao res a 1 a il 4 18 : me —_ 4 PA rs 19 mh é as Wife S K. | Left: Mayer in the crowd of a First 20 a “4 2 | Amendment Event. Mayer Decl., Ex. 3. 21 LE Ly 4 | mw Right: Zoomed in depiction of image 09 aS □□ ea on the left highlighting Mayer in the “cae 4 N » | WE □ | crowd. Id; Mayer Decl. □ 13. 23 Knowing there is access to some of the elevated areas through City Hall’s interior, Mayer 24 went to City Hall during normal business hours on November 27, 2019, to see if he could use the 25 accessible route inside City Hall. Jd. at Additional Fact I. However, Mayer alleges the doors from 26 the interior of City Hall to the mezzanine were too heavy for him to open, and he needed help 27 Case No.: 5:20-cv-067 10-EJD 28 || ORDER GRANTING IN PART AND DEN. IN PART MSJ; GRANTING IN PART AND DEN. IN PART CROSS-MSJ

1 from a City employee. Mayer Decl. { 15. For illustrative purposes, Mayer attached the following 2 || photograph of the doors that lead to the mezzanine and rotunda: 3

6 4 Zl — | es se ie Js 7 = 8 Playa 9 10 || Id. 47. 11 B. Mayer Alerts the City of Barriers, and the City Declines Accommodations a 12 Mayer first called the City’s ADA Coordinator regarding barriers to the elevated areas on

13 November 28, 2016, after attending a First Amendment Event the day prior. Statement of Facts,

v 14 || Fact 17. The parties dispute whether Mayer specifically sought access to the elevated areas in that © 15 || communication. See id. The ADA Coordinator followed up in an email indicating her opinion Q 16 || that the First Amendment Event was “not a City organized event . . . [and a]s a result, there was no

= 17 || violation of the American with Disabilities Act.” Mayer Decl., Ex. 2, ECF No. 69-5 (emphasis in

18 original). Mayer emailed back that he believed the West Plaza is a public space subject to the 19 ADA, but the City did not respond to his email, and there were no additional communications 20 || regarding Mayer’s complaint. /d.; Mayer Decl. 4] 12. 21 In April 2020, May 2020, November 2020, and June 2022, Mayer submitted government 22 || claims to the City alerting them of the barriers to accessing the elevated areas during the First 23 Amendment Events. Statement of Facts, Fact 20. Specifically, in his April and May 2020 claims, 24 || Mayer reported to the City his challenges accessing elevated areas at West Plaza during the First 25 Amendment Events due to the absence of ramps and heavy doors, and he proposed the installation 26 || of ramps to improve accessibility. Statement of Facts, Fact 21. The City rejected all of Mayer’s 27 Case No.: 5:20-cv-067 10-EJD 28 || ORDER GRANTING IN PART AND DEN. IN PART MSJ; GRANTING IN PART AND DEN. IN PART CROSS-MSJ

1 claims. Statement of Facts, Fact 25. The City disputes whether the claims specifically sought 2 accommodations. Id. at Fact 20. The City also notes that City Hall was closed to the public due to 3 COVID-19 from March 17, 2020, through July 13, 2020, and again from March 17, 2020, until 4 August 2, 2021. Id. at Additional Fact R. 5 Mayer argues that his need for accommodations was both reasonable and necessary, and 6 the City’s refusal to accommodate his disability constitutes discrimination in violation of the ADA 7 and related California laws. MSJ 5, 6, 13–17. Mayer also argues that the City’s practice of 8 locking City Halls doors after hours has a disparate impact on people with disabilities who cannot 9 access the elevated areas without access to the interior of City Hall in violation of the ADA. Id. at 10 17. 11 C. The Parties Inspect City Hall 12 On March 17, 2021, Mayer’s expert, Bassam Altwal (“Altwal”), conducted an inspection 13 of City Hall. Decl. of Bassam Altwal (“Altwal Decl.”) ¶ 6, ECF No. 69-11. Altwal opined that 14 the City Hall facilities violated the ADA and California state regulations. See id. Specifically, 15 Altwal concluded that there was no accessible exterior path of travel down from the doors on the 16 second floor at the top of the mezzanine, no directional and informational signage along that 17 exterior route of travel, and “decorative grates” on a walking path exceeding 1/2 inch in violation 18 of the ADA and state regulations. Altwal Decl. ¶¶ 11, 26. Altwal also concluded that the doors 19 from City Hall interior to the mezzanine on the second floor exceeded the allowable 8.5 pound 20 operating pressure, instead measuring at 20 pounds or more at a 90-degree angle in violation of 21 state regulations. Id. ¶¶ 27, 28. 22 On October 25, 2023, the City’s expert, Neal Casper (“Casper”), conducted an inspection 23 of City Hall. Decl. of Neal Casper (“Casper Decl.”) ¶ 4, ECF No. 72. Casper opinioned that there 24 were no ADA or state regulation violations at City Hall, except for potentially the doors’ operating 25 pressure. See id. In response to Altwal’s conclusions, Casper opined that the City does not need 26 to have an accessible exit route from the mezzanine on the second floor because City Hall has a 27 Case No.: 5:20-cv-06710-EJD 1 supervised automatic sprinkler system, signage is not required because the doors are used as an 2 exit not an entrance, and the openings are drainage not “decorative grates” for purposes of the 3 regulations Altwal cites. Id. ¶¶ 5, 38. Regarding the doors, while Casper’s measurements also 4 exceeded the minimum 8.5 allowance, as he measured between 9 to 10 pounds of pressure at a 70- 5 degree angle, Casper indicated that his measurements may have been impacted by the wind. Id. ¶ 6 44. 7 D. Proposed Accommodations 8 Mayer proposes the following accommodations to provide access to the elevated areas: (1) 9 unlocking City Hall doors for interior access, along with fixing the door operating pressure; (2) 10 building a ramp along the exterior walkway; or (3) installing chair lifts. MSJ 16. The City 11 disputes the reasonableness and feasibility of all proposals. See generally Cross-MSJ. 12 II. LEGAL STANDARD 13 Under Federal Rule of Civil Procedure 56, a court may grant summary judgment only 14 when the moving party shows that there is no genuine dispute of material fact. A genuine dispute 15 exists if there is sufficient evidence that a reasonable fact finder could decide in favor of the 16 nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And that dispute is 17 material if it might affect the outcome of the suit. Id. In determining if a genuine dispute of 18 material fact exists, a court must “tak[e] the evidence and all reasonable inferences drawn 19 therefrom in the light most favorable to the non-moving party.” Torres v. City of Madera, 648 20 F.3d 1119, 1123 (9th Cir. 2011). 21 The moving party bears the burden of persuading the Court that there is no genuine dispute 22 of material fact, and it also bears the initial burden of producing evidence that demonstrates there 23 is no dispute. Cunningham v. Medtronic, Inc., 2018 WL 4053446, at *2 (N.D. Cal. Aug. 24, 24 2018) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the moving party bears 25 the ultimate burden of persuasion, its initial burden of production is to “establish ‘beyond 26 controversy every essential element of’” its claim or defense. S. Cal. Gas Co. v. City of Santa 27 Case No.: 5:20-cv-06710-EJD 1 Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted). If the moving party satisfies this initial 2 burden, the nonmoving party can nonetheless defeat summary judgment by showing “the 3 evidence, taken as a whole, could lead a rational trier of fact to find in its favor.” Id. 4 III. DISCUSSION 5 Both parties requested summary judgment as to liability on all counts. As an initial matter, 6 the Court will address the parties’ various requests for judicial notice and objections before 7 moving to the parties’ arguments regarding the statute of limitations, ADA liability, and liability 8 under various California state laws. 9 A. Request for Judicial Notice 10 A court may take judicial notice of a fact “not subject to reasonable dispute” if it is 11 “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily 12 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 13 Mayer requests the Court take judicial notice of the following documents: (1) the City’s 14 webpage describing their process for reserving plazas for events, ECF No. 69-32; (2) the City’s 15 operating budget from 2019 through 2023, available through the City’s webpage, ECF No. 68-13, 16 at 93–95; and (3) Chapters 10 and 11B of the 1998 California Building Code, ECF No. 69-33. 17 Pl.’s Req. for Judicial Notice, ECF No. 70. In his reply, Mayer separately requests the Court take 18 judicial notice of a Google Earth image of City Hall West Plaza. ECF No. 77-6. The City did not 19 file an opposition to Mayer’s requests. 20 The Court takes judicial notice of the first three documents as publicly available 21 government publications whose accuracy cannot reasonable be questioned. The Court also takes 22 judicial notice of the Google Earth image as a document in the public record whose authenticity 23 cannot reasonably be questioned. See United States v. Schultz, 537 F. App’x 702, 704 n.1 (9th 24 Cir. 2013) (“We may take judicial notice of maps, including Google Maps, to determine distances 25 and locations.”). 26 The City requests the Court take judicial notice of the following documents: (1) the City’s 27 Case No.: 5:20-cv-06710-EJD 1 Rules and Regulations supplement to Council Policy 7-2 and provisions in Chapter 13.23 of the 2 San Jose Municipal Code (“SJMC”), ECF No. 75, at 4–16; (2) the Status Report on Deferred 3 Maintenance and Infrastructure Backlog Memorandum, ECF No. 75, at 18–72; and (3) Municipal 4 Code Chapter 13.23, ECF No. 75, at 74–81. Def.’s Req. for Judicial Notice, ECF No. 74. Mayer 5 did not file an opposition to the City’s request. However, in his evidentiary objections, Mayer 6 objected to the Status Report on Deferred Maintenance and Infrastructure Backlog Memorandum 7 being considered because it was not previously disclosed. Pl.’s Reply 5. 8 The Court overrules Mayer’s objection and takes judicial notice of all three documents as 9 government publications whose accuracy cannot reasonable be questioned. 10 B. Evidentiary Objections 11 Moving to the parties’ objections, Mayer objects to the following documents that the City 12 filed in support of its Cross-MSJ: (1) Kevin Lee’s Declaration as an undisclosed witness; (2) 13 portions of Alexis Cervantes Guzman’s testimony regarding his door pressure measurements as 14 improper expert opinion; and (3) portions of Neal Casper’s declaration regarding the wind’s 15 impact on his door measurements for prejudicial impact and lack of reliability. Pl.’s Reply 1–5. 16 The City responded to Mayer’s objections in its reply. Def.’s Reply 1–6. The Court makes the 17 following findings: 18 (1) The Court finds it unnecessary to rule on Mayer’s objection to Kevin Lee’s declaration 19 at this time. Even if the Court were to consider Kevin Lee’s declaration, the Court 20 finds that it does not impact the Court’s findings that genuine disputes of material fact 21 preclude summary judgment as to the reasonableness of the proposed accommodations. 22 (2) The Court SUSTAINS Mayer’s objections regarding Alexis Cervantes Guzman’s door 23 pressure measurements. Not only is Guzman not an expert witness on this topic, but the 24 City has failed to provide the Court with any information regarding the details of his 25 measurements, including the angle at which Guzman took his measurements, which is 26 a central part of the Court’s analysis discussed below. 27 Case No.: 5:20-cv-06710-EJD 1 (3) The Court finds it unnecessary to rule on Mayer’s objection to paragraph 44 of Neal 2 Casper’s declaration regarding his observation that wind impacted his measurements of 3 the doors when opened at a 70-degree angle. For the reasons explained below, this 4 opinion does not impact the Court’s application of both experts’ measurements at a 90- 5 degree angle. 6 The City objects to the following documents that Mayer filed in support of his MSJ: (1) 7 Atwal’s statement that wheelchair users are precluded from participating in City Hall meetings, 8 “particularly when this path is the sole public entrance available for after-hours sessions”; (2) 9 Mayer’s labels on image of City Hall Plaza from Google earth of “flat viewing area” and 10 “Mezzanine level balcony”; and (3) any cost estimates offered by Altwal. Cross-MSJ 1. The 11 Court rules as follows: 12 (1) The Court finds it unnecessary to rule on the City’s objection to Atwal’s statement 13 regarding participating in City Hall meetings. This is not an issue Mayer raised in his 14 request for summary judgment and it is not material to the present litigation. 15 (2) The Court OVERRULES the City’s objection to Mayer’s labels on the Google Earth 16 image. As previously discussed, the Court interprets the labels as illustrative rather 17 than dispositive of the function of the spaces. 18 (3) The Court finds it unnecessary to rule on the City’s objections to Atwal’s costs 19 estimates, as the Court does not reach this issue. 20 C. Objections to the City’s Reply 21 Mayer also raises the following objections to the City’s reply: (1) the reply exceeds 22 permissible page limits, (2) new arguments are raised in the reply, and (3) the reply relies on a 23 previously undisclosed witness, Walter Lin. Objections, ECF No. 79. 24 The Court SUSTAINS Mayer’s first two objections. The Court will not consider any 25 arguments presented by the City beyond the fifteenth page or any new argument raised for the first 26 time in its reply brief. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). However, 27 Case No.: 5:20-cv-06710-EJD 1 Walter Lin’s declaration appears to have been filed to merely support Kevin Lee’s declaration, 2 which the Court found above does not impact its analysis. Therefore, for the reasons previously 3 discussed, the Court finds it unnecessary to rule on objections to Walter Lin’s declaration as well. 4 D. Statute of Limitations 5 Moving to the substance of the parties’ motions, the City’s Cross-MSJ raises a statute of 6 limitations defense to Mayer’s ADA claim. Because this is a threshold issue, the Court will first 7 address this argument before moving to the parties’ motions regarding ADA and state law liability. 8 The statute of limitations for an ADA claim is three years beginning after “the last events 9 alleged in his complaint.” Sharkey v. O’Neal, 778 F.3d 767, 773 (9th Cir. 2015). 10 The City argues that new information introduced in Mayer’s MSJ reveals that Mayer first 11 became aware of the alleged barriers at City Hall in November 2016 when he called and emailed 12 the City’s ADA Coordinator regarding his concern that the steps alongside the battered wall were 13 not accessible to persons with disabilities. Cross-MSJ 6; Mayer Decl. ¶ 12, Ex. 2. Because Mayer 14 filed the present action approximately four years after these communications, the City argues that 15 Mayer’s claims are precluded by the three year statute of limitations. See id. 16 Mayer first argues that the City is precluded from raising the statute of limitations at this 17 time because it failed to plead statute of limitations as an affirmative defense, and it has not 18 established good cause to amend its answer now. Pl.’s Reply 5–6. Further, even if the Court 19 permits the City to rely on the statute of limitations, Mayer argues that this defense does not shield 20 the City from liability because the November 2016 incident is just one of many in which Mayer was 21 discriminated against, and the most recent accommodation request was sent in 2020. Id. at 7–8. 22 The Court finds the statute of limitations does not preclude Mayer’s claim. Even if the 23 Court were to consider the City’s statute of limitations defense at this time, the City has presented 24 no case law indicating that the statute of limitations for ADA claims begins at the time of the first 25 instance of alleged discrimination. To the contrary, the only case the City cites is Sharkey v. 26 O’Neal, which, as discussed above, applied the three-year statute of limitations beginning after 27 Case No.: 5:20-cv-06710-EJD 1 “the last events alleged in his complaint.” 778 F.3d 767, 773 (9th Cir. 2015). Here, the 2016 2 incident is not before the Court, and the more recent events alleged in the complaint occurred in 3 2019, 2020, and 2022, well within the statute of limitations. Therefore, the Court finds that 4 Mayer’s claims are timely under the applicable statute of limitations, and the Court will continue 5 with its analysis. 6 E. ADA Title II Discrimination 7 Title II of the ADA, 42 U.S.C. §12132, provides: “No qualified individual with a disability 8 shall, by reason of such disability, be excluded from participation in or be denied the benefits of 9 the services, programs, or activities of a public entity, or be subjected to discrimination by any 10 such entity.” A plaintiff bringing an ADA claim against a public entity under Title II generally 11 must show four elements: (1) she is an individual with a disability; (2) she is otherwise qualified 12 to participate in or receive the benefit of a public entity’s services, programs or activities; (3) she was either excluded from participation 13 in or denied the benefits of the public entity’s services, programs or activities or was otherwise discriminated against by the public entity; 14 and (4) such exclusion, denial of benefits or discrimination was by reason of her disability. 15 Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part on 16 other grounds, cert. dismissed in part sub nom. City & Cnty. of San Francisco, Calif. v. Sheehan, 17 575 U.S. 600 (2015). 18 The Court will address arguments relating to each element below. 19 1. Individual with Disability 20 It is undisputed that Mayer is disabled for purposes of the ADA. Undisputed Facts 2. 21 2. A Public Entity’s Services, Programs, or Activities 22 The Ninth Circuit has instructed that “services, programs, or activities” is construed 23 broadly “[as] bring[ing] within its scope ‘anything a public entity does.’” Barden v. City of 24 Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002). “The focus of the inquiry, therefore, is not so 25 much on whether a particular public function can technically be characterized as a service, 26 program, or activity, but whether it is a normal function of a governmental entity.” Id. (citation 27 Case No.: 5:20-cv-06710-EJD 1 and internal quotation marks omitted). 2 The Court finds no genuine dispute of material fact that the First Amendment Events 3 constitute a “service, program, or activity” by the City. The evidence shows that the West Plaza is 4 explicitly intended as a public gathering space that hosts a wide array of events and assemblies. 5 Statement of Facts, Fact 6, 7; Karb. Decl., Ex. 17 (“City Hall Facility Use Policy”). These include 6 both pre-planned permitted events and unpermitted public gatherings, such as the First 7 Amendment Events. Statement of Facts, Fact 6, 7. In broadly interpreting “services” to include 8 “anything a public entity does,” Barden, 292 F.3d at 1076, the Court finds that regularly 9 permitting the public to gather in the West Plaza, even without a permit, is a normal function of 10 the City and therefore constitutes a “service” for purposes of the ADA. 11 3. Excluded from or Denied the Benefits of the Public Entity’s Services, Programs or Activities or was Otherwise Discriminated Against 12 Mayer alleges that the City excluded Mayer from, or denied Mayer the benefits of, the 13 First Amendment Events in three ways: (1) failing to make accommodations, (2) implementing a 14 policy with a disparate impact on disabled attendees, and (3) failing to construct City Hall in 15 compliance with federal accessibility standards. See Payan v. Los Angeles Cmty. Coll. Dist., 11 16 F.4th 729, 738 (9th Cir. 2021) (describing various theories of discrimination under the ADA). The 17 Court will analyze each theory in turn. 18 a. Failure to Make a Reasonable Accommodation 19 Title II defines discrimination, in part, as “a failure to make reasonable modifications in 20 policies, practices, or procedures, when such modifications are necessary to afford such goods, 21 services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” 42 22 U.S.C. § 12182(b)(2)(A)(ii). 23 The Court will examine Mayer’s reasonable accommodation theory by separately 24 analyzing whether the undisputed facts show that (i) Mayer sought accommodations, which were 25 (ii) necessary and (iii) reasonable. 26 i. Sought Accommodations 27 Case No.: 5:20-cv-06710-EJD 1 To establish an ADA Title II violation based on the denial of reasonable accommodations, 2 a plaintiff must first demonstrate that the plaintiff “alerted the public entity to his need for 3 accommodation,” unless “the need for accommodation is obvious, or required by statute or 4 regulation.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001), as amended on denial 5 of reh’g (Oct. 11, 2001). 6 Here, Mayer argues that he sought accommodations when he contacted the City’s ADA 7 Coordinator and submitted government claims. MSJ 13. The City does not dispute receipt of 8 Mayer’s communication or government claims but argues only that Mayer’s communication and 9 government claims did not specifically “seek accommodations” for the purposes of establishing 10 his ADA violations. Statement of Facts, Fact 20. 11 The Court finds this argument unpersuasive. Mayer’s only obligation was to “alert[] the 12 public entity to his need for accommodation.” Duvall, 260 F.3d at 1139. It is undisputed that Mayer 13 contacted the City’s ADA Coordinator and informed her of the barriers he encountered in the West 14 Plaza in 2016. Undisputed Fact No. 17. In this email, Mayer complained that the steps alongside 15 the battered wall were in violation of the ADA. Answer ¶ 11. In April 2020, May 2020, November 16 2020, and June 2022, Mayer submitted “Claims Against the City of San Jose, CA” arising out of the 17 November 24, 2019; November 27, 2019; December 8, 2019; and January 18, 2020, incidents. SAC 18 ¶ 22; Answer ¶ 22; Undisputed Fact No. 20. These claims also notified the City of the barriers 19 Mayer encountered at the First Amendment Events, and two of the claims even offered solutions as 20 settlement for Mayer’s claims, including installing a ramp. Karb. Decl., Ex. 7, 8, 10, 12. The 21 undisputed facts show that in each communication with the City, Mayer at a minimum informed the 22 City of the barriers he encountered at City Hall Plaza and how these barriers interfered with his 23 ability to enjoy the events in the same way as able-bodied participants. See Karb. Decl., Ex. 7, 8, 10, 24 12. The Court finds this sufficient. See, e.g., Goodwin v. Marin Cty. Transit Dist., No. 21-cv07251- 25 JSC, 2022 U.S. Dist. LEXIS 246267, at *18–19 (N.D. Cal. Apr. 6, 2022) (finding that multiple 26 complaints about access to a public entity through submitting government claims effectively notified 27 Case No.: 5:20-cv-06710-EJD 1 the public entity of its obligations under Title II of the ADA). 2 ii. Necessary Accommodations 3 A “necessary” accommodation means “more than mere access to public facilities.” 4 Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012). The ADA guarantees 5 disabled people “full and equal enjoyment.” Id. (internal quotation marks omitted) (quoting 42 6 U.S.C. § 12182(a)). In other words, “necessary” means more than “can’t do without,” and 7 “[p]ublic accommodations must start by considering how their facilities are used by non-disabled 8 guests and then take reasonable steps to provide disabled guests with a like experience.” Id. 9 Here, Mayer argues the accommodations are necessary to fully enjoy the events in the 10 same manner as able-bodied attendees. MSJ 14. In support, Mayer presents evidence in the form 11 of his declaration, deposition, and photographs, as well as the deposition of the City’s senior event 12 coordinator, Jennifer Garcia. Karb. Decl., Ex. 2, Dep. of Jennifer Garcia (“Garcia Dep.”), ECF 13 No. 69-4. Mayer’s declaration states that he was unable to view the speakers from the ground 14 floor, and he observed abled-bodied persons enjoying better views by accessing the elevated areas 15 in the West Plaza during each event he attended. See, e.g., Mayer Decl. ¶ 7, 10, 13, 14, 16, 18. 16 Mayer attached photographs he took of these events to illustrate his observations. See Mayer 17 Decl., Ex. 1, 6, 7. To corroborate Mayer’s declaration and photographs, Mayer also highlights 18 Garcia’s testimony that she has also seen people stand on the elevated areas during large events, 19 and she has taken photographs from the mezzanine due to its comprehensive view. Garcia Dep. 20 99:16–23; 101:6–15. 21 The City questions the probative nature of Mayer’s declaration, highlighting that Mayer 22 had only attended about a dozen events over the course of 10 years. Statement of Facts, 23 Additional Fact E. The City also highlights another portion of Garcia’s testimony where she 24 testifies that the last time she recalled people standing in the relevant locations was during an 25 event “a few years ago,” when the consul general from Mexico came to give a greeting on the 26 balcony of the rotunda. Garcia Dep. 99:16-100:19. The City further argues that Mayer 27 Case No.: 5:20-cv-06710-EJD 1 mischaracterizes the events manager’s testimony—she stated that she does “[n]ot necessarily 2 [prefer the] particular viewpoint” at the mezzanine, but just generally prefers to take pictures from 3 higher grounds. Garcia Dep. 101:16–24. Finally, the City argues specifically that Location 3, the 4 tiered seating, does not offer a better vantage point, highlighting Garcia’s testimony that she does 5 not photograph from Location 3 “because the viewpoint isn’t very good,” as in she would not be 6 able to see all the equipment, the majority of the plaza, or the number of people. Garcia Dep. 7 102:5–15. 8 The Court finds no genuine dispute of material fact that accommodations to access the 9 viewpoints at Locations 1, 2, 4, and 5 are necessary; however, the Court finds disputed facts 10 regarding the necessity of accessing Location 3. 11 First, it is clear that attendees standing at Locations 1, 2, 4, and 5 enjoy a better viewpoint 12 of the First Amendment Events than attendees on the ground floor. This is particularly true for 13 attendees bound to a wheelchair whose viewpoint from the ground floor is further obstructed by 14 attendees standing in front of them. See, e.g., Mayer Decl., Ex. 3; id. ¶ 13. In this way, this case 15 is analogous to the Ninth Circuit’s analysis in Paralyzed Veterans of America v. Regal Cinemas, 16 Inc., 339 F.3d 1126, 1127–28 (9th Cir. 2003). There, the plaintiff complained that a movie theater 17 with wheelchair-bound seats available only in the first row did not provide full and equal 18 enjoyment of the theater. Id. The Ninth Circuit agreed, finding it “simply inconceivable that this 19 arrangement could constitute ‘full and equal enjoyment’ of movie theater services by disabled 20 patrons” because it required them “to crane their necks and twist their bodies in order to see the 21 screen, while non-disabled patrons [had] a wide range of comfortable viewing locations from 22 which to choose.” Id. at 1133. Similarly, here, while Mayer can still attend the event, he is 23 blocked from seeing the speakers because of his disability, and he is not afforded the same benefit 24 of able-bodies attendees who can access the elevated areas. 25 However, the Court finds disputed facts regarding whether access to Location 3, the tiered 26 seating, is “necessary.” While Mayer’s photographs show attendees standing at Location 3 during 27 Case No.: 5:20-cv-06710-EJD 1 an event, and Mayer gives his opinion that it is a better view, Garcia testified that she has 2 personally overserved the view from Location 3 and does not photograph from that location 3 “because the viewpoint isn’t very good.” Garcia Dep. 102:5–15. Thus, the question of whether 4 access to Location 3 is necessary for full and equal enjoyment remains disputed. 5 Therefore, the Court ends its analysis of the tiered seating at Location 3 here, but the Court 6 will continue with its analysis regarding whether the accommodations to access Locations 1, 2, 4, 7 and 5 are reasonable. 8 iii. Reasonable Accommodations 9 “Facilities are not required to make any and all possible accommodations that would 10 provide full and equal access to disabled patrons; they need only make accommodations that are 11 reasonable.” Baughman, 685 F.3d at 1135. “[W]hat constitutes [a] reasonable modification is 12 highly fact-specific, requiring case-by-case inquiry.” Crowder v. Kitagawa, 81 F.3d 1480, 1486 13 (9th Cir. 1996). “Reasonable modifications” do not include, for example, “measures that would 14 impose an undue financial or administrative burden or effect a fundamental alteration in the nature 15 of the service,” or measures that create new programs to provide services the municipality did not 16 previously provide. Where Do We Go Berkeley v. Cal. DOT, 32 F.4th 852, 862 (9th Cir. 2022) 17 (cleaned up). However, “[m]ere speculation that a suggested accommodation is not feasible falls 18 short of the reasonable accommodation requirement; the Acts create a duty to gather sufficient 19 information from the disabled individual and qualified experts as needed to determine what 20 accommodations are necessary.” Duvall, 260 F.3d at 1139 (cleaned up). 21 Mayer proposes several accommodations that he argues are reasonable ways to provide 22 him access to the elevated areas, including unlocking City Hall, installing a ramp, and installing 23 vertical wheelchair lifts. The City argues that any accommodation to access the elevated areas 24 would be unreasonable because the areas are not intended for viewing purposes, and the City 25 disputes the reasonableness of Mayer’s specific suggestions. The Court will discuss the City’s 26 arguments and Mayer’s proposed accommodations in turn below. 27 Case No.: 5:20-cv-06710-EJD (i) Elevated Areas Not Intended for Viewing Purposes 1 Before analyzing in detail Mayer’s specific accommodations, as threshold matter, the 2 Court will address the City’s argument that any accommodation to access the elevated areas for 3 viewing purposes is unreasonable because it is prohibited by the City’s rules and regulations for 4 safety purposes. See Undisputed Facts 6. The City presents evidence that the elevated areas are 5 walkways intended solely to exit City Hall, not for viewing events. See, e.g., Casper Decl. ¶¶ 21, 6 28; Altwal Decl. ¶¶ 11, 12, 23 (referring to locations as walkways); Karb Decl., Ex. 17, at 6. 7 Specifically, the City highlights a provision from City Hall Facility Use Rules and Regulations 8 Activities that prohibits using walkways for the purposes described by Mayer: 9 1. The primary function of City Hall Lobby Areas and 10 Walkways is to provide a means of egress from and ingress to City Hall. 11 2. Secondarily, the Lobby Areas and Walkways serve the purpose of providing a place for the public to obtain information from 12 the City about the services available in City Hall and public information provided by the City regarding an Integral Government 13 Function. 3. All activities within City Hall Lobby Areas and Walkways 14 shall be in compliance with City Hall Facility Rules and Regulations. 4. Activities that are inconsistent with the purpose of City Hall 15 lobby Areas and Walkways and/or are a danger to public health and safety are prohibited as set forth in the City Hail Facility Use Rules 16 and Regulations 17 Karb Decl., Ex. 17, at 6. The City essentially argues that providing access to the elevated areas for 18 the specific purpose of viewing events would change the function of the walkways and present 19 safety risks, as the City does not wish to encourage the public to observe events from these 20 elevated areas. 21 Mayer also refers to some of the elevated areas as “walkways” but argues that these areas 22 are not restricted from being used as viewpoints. First, Mayer highlights that the City’s arguments 23 pertain only to Locations 1, 2, and 5, not Location 4.2 Pl.’s Reply 9–10. Mayer also argues that 24 the presence of attendees in these areas shows that they are not actually restricted for viewing 25

26 2 Mayer also argues that the City does not characterize Location 3 as a walkway, but the Court above found disputed facts regarding whether access to Location 3 is necessary and thus will not 27 address that argument here. Case No.: 5:20-cv-06710-EJD 1 purposes. Id. In support, Mayer highlights Garcia’s deposition where she testified that her staff 2 and herself are not aware of any policy prohibiting a person from using the elevated locations as 3 viewing areas during events. Garcia Dep. 99:16-100:3. Garcia also testified that neither herself 4 nor her staff would prohibit people from having a conversation and gathering in the elevated areas 5 after leaving council chambers. Id. at 131:23–132:6. Mayer also cites to his own pictures of 6 events showing numerous attendees using these areas a viewpoint. Mayer Decl., Ex.1, 3–7, ECF 7 No. 69-4, 69-6, 69-7, 69-8, 69-9, 69-10 (photographs). 8 The Court finds genuine disputes of material fact regarding whether Locations 1, 2, and 5 9 are restricted from being used as viewpoints for events due to safety concerns, and whether 10 accommodations would therefore change their essential function as walkways. While the City’s 11 rules and guidelines provide that these areas are restricted for purposes other than use as 12 walkways, Mayer offers evidence to show that the public is not restricted from using the areas as 13 viewpoints in practice. Resolution of this question is material to determining whether any 14 accommodation to access these locations would be reasonable, or whether accommodations would 15 change the function of the space and implicate safety concerns. Therefore, the Court’s analysis of 16 these Locations 1, 2, and 5 ends here. 17 However, as indicated above, the rotunda labeled as Location 4 is not implicated in these 18 disputed facts—the City never disputed Mayer’s argument that Location 4 is not a “walkway” for 19 purposes of the cited rules and regulations. The Court will therefore proceed in its analysis of 20 whether accommodations to access Location 4 are reasonable. 21 (ii) Access to Location 4 Through City Hall Interior 22 Mayer argues that access to Location 4 is available through City Hall’s interior during 23 normal business hours, see MSJ 3, and a possible reasonable accommodation could be unlocking 24 City Hall’s doors after hours and on the weekends, id. at 16. Mayer presents evidence that the 25 interior access route has been used in the past for wheelchair access to Location 4 without issue, 26 including the testimony of both the City’s Event Coordinator and the Facility Manager. Garcia 27 Case No.: 5:20-cv-06710-EJD 1 Dep. 68:19–71:25, 130:18–24; Karb. Decl., Ex. 3, Deposition of Walter Lin (“Lin Dep.”) 81:14– 2 22; 101:8–105:17, ECF No. 69-17. Mayer also presents evidence that City Hall staff have been 3 able to assist wheelchair users through the interior during pre-planned, permitted events during 4 periods of closure to the public. Id. at 101:8–105:17. Finally, while City Hall staff are not 5 personally present after business hours, Mayer argues that access through City Hall interior poses 6 no safety or security risks because City Hall has in-house security that monitors the facility during 7 meetings hosted after business hours, and the City has employed security teams in the past to work 8 after hours and on the weekends to monitor the facility, including during the January 2020 9 Saturday event. Garcia Dep. 109:6–11, 120:12–19, 130:18–133:15; Lin Dep. 81:22–82:15. 10 The City argues that allowing access to the interior of City Hall while it is closed to the 11 public and no City staff are present would raise safety concerns and be an administrative and 12 financial burden. Def.’s Reply 8. 13 The Court finds that disputed facts regarding safety concerns preclude summary judgment. 14 While the City does not present evidence regarding the administrative or financial burden, 15 evidence in the record that the City has already had “negative instances” inside City Hall, 16 including vandalism and negative physical altercations, supports its argument regarding safety 17 concerns. Lin Dep. 44:4–18. This evidence conflicts with Mayer’s argument that there are no 18 safety concerns because security is present after business hours. On these facts, a reasonable jury 19 could find that requiring that the City keep City Hall doors unlocked at all hours of the day and 20 weekends, in the event that the public might gather for an un-planned, un-permitted event, 21 presents an unreasonable safety risk. 22 (iii) Access Through a Ramp or Chairlift 23 Mayer’s remaining proposed accommodations regarding ramps or chairlifts are all specific 24 to Locations 1, 2, 3, and 5. As discussed above, the Court found genuine disputes of material fact 25 regarding whether any accommodations to these locations as “reasonable” due to their function as 26 walkways. Therefore, the Court finds it unnecessary to address the reasonableness of these 27 Case No.: 5:20-cv-06710-EJD 1 accommodations at this time. 2 * * * 3 Accordingly, the Court finds that genuine disputes of material fact prevent it from granting 4 summary judgment in favor of either party as to Mayer’s reasonable accommodation theory of 5 discrimination. 6 b. Disparate Impact 7 Disability discrimination may also be based on a disparate impact theory of liability. 8 Payan, 11 F.4th at 738. “To assert a disparate impact claim, a plaintiff must allege that a facially 9 neutral government policy or practice has the ‘effect of denying meaningful access to public 10 services’ to people with disabilities.” Id. (quoting K.M., 725 F.3d at 1102). 11 The difference between a disparate impact and reasonable accommodation claim “is that a 12 reasonable accommodation claim is focused on an accommodation based on an individualized 13 request or need, while a reasonable modification in response to a disparate impact finding is 14 focused on modifying a policy or practice to improve systemic accessibility.” Id. 15 Here, Mayer argues that the City’s practice of locking City Hall doors after business hours 16 without providing alternative access disproportionately affects wheelchair users and violates the 17 ADA. MSJ 17. The City does not dispute that this policy disproportionately affects wheelchair 18 users, but again argues that changing this policy carries safety concerns. Statement of Facts, 19 Additional Fact AA. 20 The Court similarly finds that disputed facts regarding the reasonableness of modifying this 21 policy precludes summary judgment as to ADA liability. While it is undisputed that the City’s 22 practice of locking the doors disparately restricts access to certain areas of the exterior for 23 wheelchair-bound people, Mayer again must present evidence that this accessibility barrier could be 24 remedied through reasonable modifications. See Payan, 11 F.4th at 738 n.4 (“Although Title II of 25 the ADA uses the term reasonable modification rather than reasonable accommodation, these terms 26 create identical standards and may be used interchangeably.”) (internal quotation marks omitted). 27 Case No.: 5:20-cv-06710-EJD 1 For all the reasons discussed above, the Court finds that Mayer’s proposed solutions of leaving the 2 doors unlocked after business hours presents disputed material facts regarding safety concerns. 3 Accordingly, the Court similarly finds that genuine disputes of material fact prevent it 4 from granting summary judgment in favor of either party as to Mayer’s disparate impact theory of 5 discrimination. 6 c. Failure to Construct City Hall in Compliance with Federal Access Standards 7 Finally, Mayer argues that the City is liable under the ADA for failing to construct City 8 Hall in compliance with federal access standards. A public entity “excludes” from participation or 9 “denies the benefits” of a public program if the “public entity’s facilities are inaccessible to or 10 unusable by individuals with disabilities.” Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 11 985 (9th Cir. 2014). “In defining accessibility, Title II’s implementing regulations distinguish 12 between newly constructed or altered facilities . . . and existing facilities.” Id. For newly 13 constructed or altered facilities to be “readily accessible,” such as City Hall, the “facility must be 14 constructed in conformance with the Americans with Disabilities Act Accessibility Guidelines for 15 Buildings and Facilities (ADAAG), or with the Uniform Federal Accessibility Standards 16 (UFAS).” Id. at 986 (internal citations omitted) (citing 28 C.F.R. § 35.151(c)(1)-(3)). The parties 17 have stipulated that at the time of City Hall’s construction, the applicable accessibility standards 18 under the ADA were the 1991 ADA Standards for Accessible Design for new construction (“1991 19 ADA Standards”). See Statement of Facts, Fact 8. 20 Mayer argues that the undisputed facts show the City violated the 1991 ADA Standards 21 regarding (1) signage, (2) accessible walkways, and (3) horizontal gaps in walking paths. The 22 City argues that the undisputed facts show compliance with these 1991 ADA Standards. The 23 Court will analyze each relevant 1991 ADA Standard in turn. 24 i. Signage 25 The parties agree that the 1991 ADA Standards require signage along the path of travel 26 directing wheelchair users to an accessible entrance, and there are no such signs at City Hall to 27 Case No.: 5:20-cv-06710-EJD 1 direct the public to the doors at the top of the exterior pathway. Altwal Decl. ¶ 26; Supplemental 2 Declaration of Bassam Altwal (“Supp. Altwal Decl.”) ¶ 14, ECF No. 77-5; Casper Decl. ¶¶ 38–39. 3 However, the parties dispute whether the doors at the top of the exterior pathway is an 4 “entrance” requiring signage. Mayer cites architectural plans labelling the doors as entrances and 5 testimony from the City’s event manager confirming their dual function for entry and exit. Casper 6 Decl. ¶ 25; Altwal Decl. ¶ 13; Garcia Dep. 69:6–71:25, 78:5-8. The City rebuts with expert 7 testimony that the doors are used exclusively for exiting because they only contain hardware on 8 the exterior, and they were labeled with an “exit only” sign during an inspection in 2023. Casper 9 Decl. ¶¶ 13, 25. 10 The Court finds the disputed facts regarding doors’ function as an entrance preclude the 11 Court from entering summary judgment on this issue for either party. 12 ii. Accessibility of Walkways Leading to Entrances 13 Mayer also argues that the exterior walkway violates various other requirements for 14 pathways that lead to entrances. MSJ 18. However, again here, resolution of this question relies 15 on the disputed facts regarding whether the doors function as an “entrance.” For the reasons 16 discussed above, the Court finds that these disputed facts preclude it from entering summary 17 judgment on this issue for either party. 18 iii. Horizontal Gaps in the Accessible Route 19 The parties agree that the 1991 ADA Standards require that “gratings” located on walking 20 surfaces have spaces no greater than 1/2 inch. Supp. Altwal. Decl. ¶ 24; Casper Decl. ¶¶ 46–49. 21 The City does not dispute that the openings located alongside the exterior walkway exceed 22 1/2 inch. Casper Decl. ¶¶ 46–49. However, the parties dispute whether these openings can be 23 considered “gratings.” Mayer classifies the openings as “grates,” citing to his expert’s report, 24 which classifies the openings as “decorative grates.” Supp. Altwal Decl. ¶ 24. But the City 25 classifies the openings as drainage, not “grates,” and argues that the drainage is not subject to the 26 1/2 inch requirement. Casper Decl. ¶¶ 46–49. 27 Case No.: 5:20-cv-06710-EJD 1 The Court finds these disputed facts regarding the function of the surface area alongside the 2 exterior walkway preclude the Court from entering summary judgment on this issue for either party. 3 * * * 4 Accordingly, as to Mayer’s ADA claim, the Court GRANTS Mayer’s motion for summary 5 judgment on the following discrete issues: (1) Mayer is disabled for the purposes of the ADA, (2) 6 the First Amendment Events were “programs or activities” for purposes of the ADA, and (3) 7 access to Locations 1, 2, 4, or 5 are “necessary” for full and equal enjoyment of the First 8 Amendment Events for purposes of the ADA. The Court DENIES both parties’ requests for 9 summary judgment on all other remaining issues regarding ADA liability. 10 F. California Government Code 11 California Government Code section 4450 requires that “all buildings, structures, sidewalks, 12 curbs, and related facilities, constructed in this state by the use of state, county, or municipal funds, 13 or the funds of any political subdivision of the state shall be accessible to and usable by persons 14 with disabilities.” To prove a violation of Section 4450, the plaintiff must establish a violation of 15 the California Building Code (“CBC”). Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 174 16 (Cal. 1990) (“Government Code section 4450 et seq. requires that facilities conform to building 17 standards published in the State Building Standards Code relating to access for the physically 18 handicapped.”). The parties have stipulated that at the time of City Hall’s construction, the 19 applicable standards for new construction or alterations under California law were those contained 20 in the 1998 California Building Code. Def.’s Cross-MSJ 7; Statement of Facts, at 15. 21 Mayer argues that the undisputed facts show the City violated the 1998 CBC requirements 22 regarding (1) accessible exit discharge, (2) signage, and (3) operating door pressure. The City 23 argues that the undisputed facts show City Hall is in compliance with these 1998 CBC 24 requirements. The Court will analyze each in turn. 25 1. Accessible Exit Discharge 26 Mayer first argues that the exterior walkway and stairs are part of an exit discharge route 27 Case No.: 5:20-cv-06710-EJD 1 and therefore must be “accessible” under the 1998 CBC. MSJ 21–22. The City does not dispute 2 that the route is not accessible, but instead argues that accessible egress at exits from an occupiable 3 level above or below the ground level is not required under the 1998 CBC when buildings have an 4 automatic sprinkler system, which is currently installed at City Hall. Casper Decl. ¶ 26. 5 Mayer’s reply ignores Casper’s conclusions regarding City Hall’s sprinkler systems. 6 While Altwal’s supplemental declaration mentioned Casper’s opinions on this point, Altwal 7 notably did not dispute the fact that the sprinkler system is installed in City Hall, or dispute 8 Casper’s conclusion that City Hall’s sprinkler system satisfies its obligation to provide an 9 accessible egress at exits from an occupiable level above or below the ground level. Supp. Altwal 10 Decl. ¶ 7. Instead, Altwal’s only argument is that Casper’s conclusion “narrowly focuses on exits 11 within the building itself, overlooking broader regulatory requirements.” Id. Altwal goes on to 12 quote two regulatory requirements from the 2022 CBC. Id. However, Altwal neither opines that 13 the 2022 CBC is applicable here nor explains how the 2022 CBC changes the meaning of the 1998 14 CBC sprinkler system exception. See id. 15 In lieu of a response from Mayer on this point, the Court finds that the City has presented 16 undisputed evidence to show it is not in violation of the specific accessible exit discharge 17 requirements Mayer cites because of its sprinkler system. 18 2. Signage 19 The parties agree that, similar to the ADA, the 1998 CBC also requires signage along the 20 path of travel directing wheelchair users to an accessible entrance, and there are no such signs at 21 City Hall. Altwal Decl. ¶ 26; Supp. Altwal. Decl. ¶ 14; Casper Decl. ¶¶ 38–39. However, as 22 discussed above, the parties dispute whether the doors at the top of the exterior pathway is an 23 “entrance” requiring signage. For the same reasons stated above, the Court finds genuine disputes 24 of material fact preclude summary judgment for either party on this issue. 25 3. Operating Door Pressure 26 The parties agree that the 1998 CBC requires that the maximum effort to operate exterior 27 Case No.: 5:20-cv-06710-EJD 1 doors shall not exceed 8.5 pounds. MSJ 23; Casper Decl. ¶ 45. 2 Mayer argues that operating pressure for the doors at the top of the exterior pathway 3 exceeds 8.5 pounds of force, highlighting that both parties’ experts measured force exceeding 8.5 4 pounds. Mayer’s expert measured force between 22 to 28 pounds when the doors opened to a 90- 5 degree angle. Altwal Decl. ¶ 27. Similarly, the City’s expert measured force between 16.9 to 6 21.06 pounds at a 90-degree angle. Casper Decl. ¶ 44. The City’s expert also measured the force 7 when opened to a 70-degree angle, finding between 9.08 and 9.51 pounds of force. Id. 8 The City’s expert concluded that the doors could still “potentially” be in compliance with 9 the 1998 CBC, despite the measurements above 8.5 pounds, for two reasons. See Capser Decl. ¶ 10 4. First, the City’s expert opines that the measurements of force should be conducted at a 70- 11 degree angle, relying on guidance from the U.S. Access Board, which is a federal agency offering 12 advisory opinions on federal accessibility standards. Casper Decl., Ex. B., at 37. Second, using 13 his 70-degree angle measurements of 9.08 to 9.51 pounds, the City’s expert opined that the doors 14 may still comply with the 1998 CBC because the wind impacted his measurements and potentially 15 increased the door pressure above 8.5 pounds. Casper Decl. ¶ 44.3 16 Mayer’s expert rebuts that measurements should be conducted at 90-degree angles because 17 the 1998 CBC requires all exit doors “swing to the fully open position,” and the City’s citation to 18 the U.S. Access Board is irrelevant, particularly because there are no federal ADA regulations 19 regarding door operating pressure. Supp. Atlwal Decl. ¶ 18. 20 The Court finds that the undisputed facts support Mayer’s argument. As an initial matter, 21 the Court will apply the experts’ measurements at a 90-degree angle. The City’s use of the U.S. 22 Access Board’s guidelines to support its 70-degree angle theory is inapplicable to the CBC, which 23 generally requires that doors “swing to the fully open position.” Using the 90-degree angle 24

25 3 The Court is also unpersuaded by the City’s argument that the doors must be considered an 26 “entrance” or “ground floor exit” for the 8.5-pound requirement to apply. Casper Decl. ¶ 45. The Court agrees with Altwal that the 1998 CBC section upon which Casper relies does not impose 27 this requirement. See Supp. Altwal Decl. ¶ 19. Case No.: 5:20-cv-06710-EJD 1 standard, it is clear that both experts’ measurements far exceed the 8.5 pound maximum. Even if 2 the presence of the wind impacted the City’s measurements, the City’s expert only opined that the 3 wind may have impacted his measurements of the doors at a 70-degree angle, and he formed no 4 opinion regarding whether the wind could have possibly added the substantial amount of weight 5 needed to bring the doors into compliance when measured at a 90-degree angle. 6 Therefore, the Court finds that the undisputed facts from both experts show that the doors 7 do not comply with 1998 CBC. 8 * * * 9 Accordingly, as to Mayer’s California Government Act claim, the Court GRANTS 10 Mayer’s motion for summary judgment on his claim that the doors’ operating force violates the 11 1998 CBC. The Court also GRANTS the City’s motion for summary judgment on its argument 12 that the City’s sprinkler system satisfies the 1998 CBC requirements regarding accessible exit 13 discharge. The Court DENIES both parties’ requests for summary judgment on all other 14 remaining issues regarding California Government Code liability. 15 G. The California Disabled Persons Act 16 The California Disabled Persons Act guarantees to persons with disabilities “the same right 17 as the general public to the full and free use of the streets, highways, sidewalks, walkways, public 18 buildings, medical facilities, . . . public facilities, and other public places.” Cal. Civ. Code § 54(a). 19 A violation of the ADA is a violation of the CDPA. Cal. Civ. Code § 54(c) (“A violation of the 20 right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101- 336) 21 also constitutes a violation of this section.”); Turner v. Ass’n of Am. Med. Colls., 167 Cal. App. 22 4th 1401, 1413 (Cal. 2008). 23 Mayer’s only argument to this point is that the Court should grant summary judgment 24 because the evidence shows the City violated the ADA. MSJ 19. Because, as discussed above, 25 the Court did not grant judgment as to ADA liability, the Court denies Mayer’s motion for 26 summary judgment on this claim. 27 Case No.: 5:20-cv-06710-EJD H. Unruh Act 1 The Unruh Act guarantees all Californians with disabilities full and equal access to 2 “accommodations, advantages, facilities, privileges, or services in all business establishments of 3 every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the ADA by a business 4 establishment is a violation of the Unruh Act. Cal. Civ. Code § 51(f); Molski v. M.J. Cable, Inc., 5 481 F.3d 724, 731 (9th Cir. 2007); Brennon B. v. Superior Court, 13 Cal. 5th 662, 690 (Cal. 2022). 6 Mayer argues that, by renting out areas of City Hall, the City is engaged in a business-like 7 activity subjecting it to liability under the Unruh Act. Mayer presents evidence that the City 8 charges event organizers for plaza reservation, advertises this information on its website, and treats 9 the organizers as “clients” entering into contracts, including payments for security and deposits. 10 E.g., Garcia Dep. 27:13–18, 62:10–20, 105:5–7, Garcia Dep., Ex. 6 (event invoices and permits). 11 The City argues that it is not subject to the Unruh Act because it is not a business, and it 12 was not acting as a business when it allowed the First Amendment Events to occur in the West 13 Plaza. Cross-MSJ 8. 14 The Court finds that City is not subject to the Unruh Act based on these specific facts.4 15 While the City may act as a business when it rents out the plazas and provides services for events, 16 Mayer attended unplanned and unpermitted events where there is no evidence that the organizers 17 reserved the plaza, paid money for a permit, or entered into any contract with the City whereby 18 they exchanged money or were considered “clients.” In other words, there is no evidence that the 19 City operated as a business when it allowed Mayer and other members of the public to freely 20 assemble on its property for the First Amendment Events. 21 Therefore, the Court GRANTS the City’s motion for summary judgment as to Mayer’s 22

23 4 The City is incorrect that it cannot be held liable under the Unruh Act under any circumstance. 24 As Mayer highlights, even entities not traditionally seen as business establishments may fall under the Unruh Act if they operate with sufficient businesslike attributes. See, e.g., Sherman v. Regents 25 of Univ. of Cal., No. 20-cv-06441-VKD, 2022 U.S. Dist. LEXIS 70765, at *47–49 (N.D. Cal. Apr. 8, 2022); Gatto v. Cty. of Sonoma, 98 Cal. App. 4th 744, 769 (2002) (noting in dicta that a county 26 fair could be a business establishment under the Unruh Act); O’Connor v. Vill. Green Owners Ass’n, 33 Cal. 3d 790, 796 (Cal. 1983); Isbister v. Boys’ Club of Santa Cruz, 40 Cal. 3d 72, 78–83 27 (Cal. 1985). Case No.: 5:20-cv-06710-EJD 1 Unruh Act claim. 2 || IV. CONCLUSION 3 The Court GRANTS IN PART AND DENIES IN PART Mayer’s motion for summary 4 || judgment. The Court finds no genuine dispute of material fact regarding the following issues: 5 1. Mayer is disabled for purposes of the ADA. 6 2. The First Amendment Events were services for purposes of the ADA. 7 3, Access to Locations 1, 2, 4, or 5 are necessary for full and equal enjoyment of the 8 First Amendment Events for purposes of the ADA. 9 4. The force measured on the doors at the top of the exterior walkway violate the 1998 10 || CBC. 11 The Court otherwise DENIES summary judgment as to all other remaining issues in 12 || Mayer’s motion for summary judgment. 5 13 The Court GRANTS IN PART AND DENIES IN PART the City’s cross-motion for 14 summary judgment. The Court finds no genuine dispute of material fact regarding the following 3 15 issues: a 16 1. The sprinkler system in City Hall relieves the City of its obligation to comply with the 3 17 1998 CBC accessible exit discharge requirements cited by Mayer. 18 2. The City is not liable under the Unruh Act. 19 The Court otherwise DENIES summary judgment as to all other remaining issues in the 20 || City’s motion for summary judgment. 21 IT IS SO ORDERED. 22 || Dated: September 16, 2024 23 24 aD □ EDWARD J. DAVILA 25 United States District Judge 26 Case No.: 5:20-cv-067 10-EJD 28 || ORDER GRANTING IN PART AND DEN. IN PART MSJ; GRANTING IN PART AND DEN. IN PART CROSS-MSJ _